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Summary and Key
Recommendations

Every year, tens of thousands of migrant workers from
Kyrgyzstan travel to the Central Asian economic powerhouse of Kazakhstan in
search of employment. Thousands of these migrant workers, often together with
their children, find work in tobacco farming. Human Rights Watch research in 2009 documented abuse and exploitation of
many migrant workers by tobacco farm owners who employ them for seasonal work.
Tobacco farm owners in Kazakhstan contract with and supply tobacco to Philip
Morris Kazakhstan (PMK), a subsidiary of Philip Morris International (PMI), one
of the world’s largest tobacco companies.

Human Rights Watch interviewed 68 migrant tobacco workers in
2009 and early 2010 who were working or who had recently worked on tobacco
farms in Kazakhstan. They variously told Human Rights Watch how some employers confiscated
their passports, failed to provide them with written employment contracts, did
not pay regular wages, cheated them of earnings, and forced them to work
excessively long hours. Some employers also failed to provide migrant workers
with potable water, adequate hand-washing and other sanitary facilities, or
adequate living conditions.

In the worst cases, workers were subjected to forced labor,
or situations analogous to forced labor, in which employers confiscated migrant
workers’ passports and in some cases required them to perform other work
without pay or compensation in addition to tobacco farming. Work extracted
under menace of penalty and for which a person has not offered him or herself
voluntarily is forced labor and is banned under both international and
Kazakhstani law.

Human Rights Watch documented 72 cases of children working in
tobacco farming in 2009, the youngest of whom was 10. At that time, the
structure of tobacco farming, whereby workers were paid only once at the end of
a season based on the volume of tobacco produced, contributes to parents relying
on children to participate in the work. International and Kazakhstani law
prohibits the employment of children under the age of eighteen in
harmful or hazardous work; Kazakhstani law explicitly prohibits employment of
children in tobacco farming. Owing to the difficulty of the work and the risks
associated with the handling of tobacco leaves and exposure to pesticides,
experts agree that tobacco farming is one of the worst forms of child
labor, or labor from which children under 18 are categorically prohibited.

Children who worked with their families on tobacco farms
typically missed several months of school each year, or even entire academic years.
Although very often parents expected their children to work with them, in some
cases this was because migrant children faced obstacles in accessing local
schools in Kazakhstan. International law guarantees the right to
primary education, including for migrant workers.

Although Kazakhstani workers employed in tobacco may face
many of the same abuses documented here, Human Rights Watch is
focusing on migrant workers in this report because they are particularly
vulnerable to abuse. In the absence of legal residency and employment status,
they are less able or willing to seek redress through government agencies or
the courts. Migrant workers are also typically very poor, mostly do not speak
Kazakh, and are living in remote areas, far from governmental or
non-governmental services.

Under international human rights law, Kazakhstan has the obligation to protect all individuals in its territory, regardless of
migration or employment status, from abuses, including by private actors. But
in most cases the government of Kazakhstan has not fulfilled its obligations in
its treatment of migrant workers: it has neither provided sufficient legal
protections nor made existing protections effective.

International human rights treaties and other
instruments pay particular attention to the duty of states to uphold equal and
inalienable rights. However, the basic principle that companies also have a
responsibility to respect human rights, including workers’ rights, has
achieved wide international recognition, as evidenced by numerous instruments,
initiatives, guidelines and declarations, as well as in case law.

In line with these principles, companies are expected to
have policies and procedures in place to ensure human rights are respected and not
abused, to undertake adequate due diligence to identify and effectively
mitigate human rights problems, and to adequately respond in cases where
problems arise.

PMK is the sole purchaser of tobacco in the Enbekshikazakh
district of Almaty province, the main tobacco farming area of Kazakhstan. As a subsidiary of PMI, both PMK and PMI have responsibilities under
international human rights principles and obligations under Kazakhstani law to
ensure the protection of those producing tobacco to be used in PMK and PMI
products.

PMI has developed a Good Agricultural
Practices (GAP) policy related to various aspects of tobacco farming,
including the prohibition on child and forced labor, workplace safety, and safe use of pesticides. However, on the basis of its research Human
Rights Watch believes that the GAP program has not proved adequate to
address the range of abuses and exploitative practices in tobacco farming in
Kazakhstan documented in this report. In the course of research for this report
Philip Morris International and Human Rights Watch maintained a dialogue
through meetings and letters, and PMI and PMK committed to taking measures to
address the abuses and exploitative practices documented by Human Rights Watch.
These are outlined more fully in the relevant chapters of this report.

Migrant Workers and Tobacco Farming in
Kazakhstan

Experts estimate that Kazakhstan hosts from 300,000 to one
million migrant workers each year, the vast majority of whom are employed
informally, due to a strict quota system and stringent and complex legal
requirements for employers to hire migrant workers. Many migrants work
seasonally in cotton, vegetable and tobacco farming.

Tobacco cultivation in Kazakhstan takes place almost
exclusively in the agricultural Enbekshikazakh district, approximately 120
kilometers (75 miles) east of Kazakhstan’s largest city, Almaty. Each
year, Kazakhstani landowners sign contracts directly with PMK for tobacco to be
produced. Some landowners farm tobacco themselves but many hire workers, most
often from Kyrgyzstan, to do some or all of the tobacco farming. Tobacco
farming in Kazakhstan involves an eight to nine-month season of difficult,
labor-intensive manual work. Tasks include growing tobacco plant seedlings,
transplanting seedlings to fields, watering, weeding, fertilizing and applying
pesticides, then harvesting the leaves by hand, stringing and hanging the
leaves for curing, steaming the leaves to prepare them for packing and packing
them in bales to be sold to PMK. Human Rights Watch’s research in 2009
found that these tasks were performed by both adults and children.

The landowner, sometimes accompanied by the migrant worker,
delivers the bales to the PMK factory near Almaty, where a tobacco leaf expert
determines the grade, or quality, of the tobacco. PMK sets a price per grade of
tobacco each season and pays the Kazakhstani landowner based on the amount of
tobacco of each grade. The landowner, in turn, pays the head of the migrant
worker family.

Wage Violations and Induced Indebtedness

Migrant tobacco workers interviewed by Human Rights Watch
did not receive any regular wages during eight to nine months of employment, in
violation of Kazakhstani law. Instead, the landowner paid the head of the
migrant worker family, often the male head of household, one lump sum payment
at the end of the tobacco harvest. Other family members, including both
children and other adults, most often women, simply “worked for the
family,” and did not earn any direct payment for their work.

The single-end-of-season payment structure made
migrant workers heavily dependent on the landowners. Very often, because
migrant workers possessed little or no cash at the beginning of the season, the
landowner provided them small advance payments or purchased directly basic
necessities, such as food and medicine. The landowner deducted these expenses,
as well as travel and the costs of informal intermediaries who recruit migrant
workers from the final end-of-season payment. The failure to pay
regular wages put workers at risk of induced indebtedness. In the event of a
poor harvest, deductions for food, travel, intermediaries’ fees, and
other expenses paid by the landowner may have totaled more than the total
earnings received for the tobacco produced.

For example, Human Rights Watch met Ulkan
U., in 2009 in Malybai, Kazakhstan, while she was working with
three of her children, ages 12, 14, and 17. When the family first came
in April 2007, the landowner paid an exorbitant fee to the intermediary who
brought Ulkan U. and her children from Kyrgyzstan and expected her to repay
this and other expenses, such as food costs, at the end of the season. After a
modest harvest, Ulkan U. found herself in debt, and the employer demanded she
remain another season in order to repay him. Although she repaid her debt at
end of 2008, she still did not have sufficient funds to return home and worked
with her children during the 2009 tobacco season as well. Her children have not
attended school since 2007.

Forced Labor

In six cases documented by Human Rights Watch
in 2009, migrant tobacco workers were trapped in situations which Human Rights
Watch determined to be forced labor or situations analogous to forced labor, arising
from the convergence of several particularly abusive
practices—the payment structure, deductions from payments, and
employers’ holding of passports. The end-of-season payment structure
created a significant penalty for migrant workers who sought to leave an
abusive situation, since leaving their employment at any time prior to the
harvest would have meant forfeiting any earnings for work performed to date. In
some cases of forced labor, landowners required workers to do additional work
at the landowners’ farm, such as farming other crops, house cleaning, or
renovation work, all without pay.

In one case, 34-year-old Umut U. worked on a
tobacco farm in Malybai, Kazakhstan in 2009 with her four children, ages 10,
11, 13, and 14. She told Human Rights Watch that her employer confiscated her
passport and her children’s birth certificates at the start of the
tobacco farming season and returned them only after the family had completed
the harvest. When Umut U. and her children weren’t farming tobacco, the
employer demanded that they help him with his house cleaning, farming and weeding
and harvesting of onions, without pay. In the absence of her passport and
fearing forfeiture of the family’s earnings, Umut U. felt she had no
choice but to comply.

Child Labor

The single end-of-season payment structure in
place in 2009 and in previous seasons contributed to the use of child labor and
to excessively long working hours for both children and adult workers. Migrant
workers felt compelled to dedicate as much effort and as many hands as possible
each day to the tobacco farming in hopes of producing the expected volume of
tobacco and receiving decent earnings.

Child labor in Kazakhstan is a longstanding problem. Human
Rights Watch documented 72 cases of children, ages 10-17, working, or who had
previously worked, in tobacco farming in 2009. Both parents and children
interviewed by Human Rights Watch stated that children perform the some or all
of the same labor-intensive, difficult farming work as adults.

Tobacco farming is hazardous work due
to a number of factors, such as the physical difficulty of the work and
repetitive motions, long working hours, exposure to high heat and sun during
the summer months, and exposure to pesticides and health risks associated with
the handling of tobacco plants. For children, exposure to
pesticides and other health hazards are particularly acute, as immature and
still-growing bodies are more vulnerable than adults’ to systemic damage.
Children may work excessively long hours, have little rest, and have
poor access to water, nutrition, sanitation, and hygiene.

Human Rights Watch found that children working on tobacco
farms typically missed between two to six months of the academic school year in
Kyrgyzstan and did not attend school in Kazakhstan. Parents take their children
out of school in March or April to travel to Kazakhstan to begin the tobacco
season. Although some children returned to Kyrgyzstan in August to begin the
school year, most remained with their parents until November or December to
assist with the harvesting and curing of tobacco. In a few cases documented by
Human Rights Watch, children missed whole school years when their families did
not return to Kyrgyzstan for the winter.

Although most migrant workers expected their children to
work together with them in order to fulfill the required volume of tobacco,
some parents stated a desire for their children to attend local schools in
Kazakhstan. However, information provided by migrant workers and the government
of Kazakhstan indicates that most schools in the Enbekshikazakh district are
reluctant to accept migrant children, due to parents’ lack of residency
registration.

Excessively Long Hours

Migrant workers told Human Rights Watch that both adults and
children worked up to 18 hours a day during the high season of tobacco farming,
usually in July or August, when temperatures are also hottest in Kazakhstan. Workers had no regular weekend day or days off and very few other days off.

As an example of long hours and little rest for migrant
worker children and adults in tobacco farming, Sharapat Sh., 41, who worked in
Malybai with her adult son and 15-year-old daughter, told Human Rights Watch
that they typically worked 11 to 13 hours a day, performing a variety of
labor-intensive, manual farming tasks. For the nine months that they were
working on the tobacco farm they took a total of 14 days off, including
weekends. By contrast, an employee working a standard work week for nine
months, or approximately 36 weeks, would get at a minimum of 72 weekend days
off.

Pesticides, Fertilizers, and Living Conditions

Some migrant workers applied pesticides and fertilizers to
tobacco plants. Exposure to pesticides may pose both acute and chronic health
risks to those who handle and apply them and to those working on crops which
have recently been treated with pesticides. Migrant tobacco workers in
Kazakhstan interviewed by Human Rights Watch did not always know the names of
the pesticides or fertilizers they were using or the health risks associated
with them, and only one worker interviewed had received safe-handling instructions
from PMK regarding pesticide and fertilizer use. These instructions, however,
were not consistent with the handling, first aid, and restricted entry
requirements provided on the label of one of the pesticides being used on farms
producing tobacco for PMK in 2009.

Migrant workers interviewed by Human Rights Watch also had
not received any information or training about other health risks associated
with tobacco farming, including green tobacco sickness (GTS), which is caused
by absorption of nicotine through the skin from contact with tobacco leaves,
especially wet tobacco leaves, and is characterized by nausea, vomiting,
headache, muscle weakness, and dizziness. Other health complications can
include respiratory ailments, exposure to extreme temperatures, musculoskeletal
disorders as a result of carrying of excessive and/or awkward loads, repetitive
and often forceful actions, bending, stooping, and the adoption of awkward and
uncomfortable postures.

Migrant workers interviewed by Human Rights Watch stated
that their employer provided free accommodation. In the absence of regular
wages, this is the most viable option for migrant workers. Some migrant workers
interviewed by Human Rights Watch, including whole families with small
children, lived in makeshift housing of their own construction on the edge of
the tobacco fields for at least five of the peak months of the tobacco farming
season. These makeshift structures have little protection from the elements,
and have no electricity, running water, or heat.

On all farms which Human Rights Watch visited there was no
potable water available for migrant workers or other workers on the tobacco
fields. Workers retrieved water from nearby streams, rivers, canals, and
springs, which are often also used to irrigate the tobacco fields. Drinking
dirty or contaminated water may expose workers to dangerous chemicals,
including pesticides, organic wastes, and parasites. Ready access to plentiful,
clean drinking water is also crucial for migrant tobacco workers, who work in
full sun and high heat for many months of the year, to prevent dehydration and
heat-induced illness.

Many workers reported that they did not have access to
proper bathing facilities, particularly those who lived near the tobacco
fields. Hand-washing and bathing facilities are important both for basic
hygiene of workers and their families as well as for mitigating the effects of
exposure to pesticides and nicotine in tobacco leaves.

The Kazakhstani government, Philip Morris International, and
Philip Morris Kazakhstan can and should immediately implement measures to fully
protect migrant tobacco workers from abuse and exploitation and prevent child
labor in tobacco farming.

Government of Kazakhstan Policy and Key
Recommendations

Changes in government policy in 2009 rendered migrant
tobacco workers especially vulnerable to abuse because it became impossible for
them to secure regular employment status. Kazakhstan’s current migration
policy prioritizes temporary labor migration, particularly of skilled workers.
The government allocates an annual quota for foreign workers, including
agricultural workers from Kyrgyzstan, based on a specific agreement between the
two governments. Kazakhstan maintains a strict, complex, and costly permit
system for employers to hire migrant workers, although the procedure is
somewhat simplified for the hiring of agricultural workers from Kyrgyzstan.

In 2009, the government did not allocate any permits for
employers in Almaty province to hire agricultural workers from Kyrgyzstan, citing
rising unemployment in the country. This move rendered all migrant workers
working in the region in 2009, including almost all migrant workers interviewed
by Human Rights Watch for this report, into irregular employment situations.
Migrant workers who are in an irregular residency or informal employment
situation are more vulnerable to exploitation by employers and are more
reluctant to seek redress through official channels because they fear possible
fines or expulsion from Kazakhstan.

The government of Kazakhstan has not taken sufficient steps
to protect migrant tobacco workers from abuse. This is in part due to a belief
by some Kazakhstani authorities, as stated to Human Rights Watch during
official meetings, that workers with irregular status have no rights.

In response to the problem of child labor, the government
has established a number of inter-agency coordinating groups tasked with
addressing various issues relevant to child labor. These mechanisms have not
proven sufficient to comprehensively address child labor among migrant tobacco
workers.

The government of Kazakhstan should establish
accessible, effective complaint mechanisms and rigorously investigate
complaints of abuse made by migrant workers, irrespective of a migrant
workers’ contractual status or migration status. The labor
inspectorate should also rigorously enforce laws prohibiting forced labor and
passport confiscation as well as those guaranteeing basic labor protections.
The relevant ministries and local authorities, including the Ministry of Labor
and Social Protection should ensure children of migrant workers have access to
local schools and other social services and increase training for parents,
children, employers, and others regarding the hazards of child labor in
tobacco. The labor inspectorate should rigorously enforce laws prohibiting
child labor in tobacco farming.

More detailed recommendations are set forth at the end of
this report.

Human Rights Watch first brought to Philip Morris
International (PMI) its concerns about the treatment of migrant workers on
tobacco farms producing tobacco for PMK in October 2009. Since that time, PMI
has met with Human Rights Watch twice to discuss concerns about the protection
of migrant workers and recommendations for addressing these concerns. PMI has
also responded in writing four times to Human Rights Watch’s requests for
information. The correspondence between Human Rights Watch and Philip Morris
International can be found in appendices to this report.

As detailed below, in response to communications with Human
Rights Watch, PMI and PMK have committed to taking measures to address the
abuses and exploitative practices documented in this report. At the time of the
research for this report, Philip Morris Kazakhstan’s system for
preventing forced labor and child labor involved PMK agronomists, specialists
who advise farmers and workers on tobacco crop production, conducting regular
inspections of farms. They are responsible for implementing a number of PMI
policies, including those related to crop management, pesticide use, and the prohibition
on child labor and forced labor. Philip Morris Kazakhstan agronomists have not
been responsible for monitoring and reporting of any labor or other violations
such as those documented by Human Rights Watch. In addition, at the time of
Human Rights Watch’s research, there were only four agronomists
responsible for monitoring the 519 farms producing tobacco for Philip Morris
Kazakhstan in 2009.

In response to Human Rights Watch’s October 2009
letter, PMI and PMK executives undertook a three-day investigation in the
Enbekshikazakh district of Almaty province, where, according to PMI, they
visited over 30 farms that employ or have employed migrant workers and
conducted interviews with members of the PMK agronomy team, representatives of
schools, local authorities, as well as NGOs with whom they had worked in the
past. PMI and PMK presented the findings of this investigation to Human Rights
Watch and relevant findings are reflected in this report.

PMI and PMK executives stated that they did not find
evidence of some of the worst abuses documented by Human Rights Watch, such as
forced labor or debt bondage. However, in response to concerns raised by Human
Rights Watch, PMI has stated that it will implement a number of measures to
expand and strengthen its labor and other rights protection for migrant
workers. These measures include strengthening the contracts PMK signs with the
tobacco farm owners as well as requiring landowners to conclude contracts with
each of their workers guaranteeing minimum labor standards and other
conditions, consistent with Kazakhstani law. PMI also committed to expanding
the training of agronomists, farmers, and workers, to include topics such as
forced labor, illegal passport retention, adequate living conditions, and
education for migrant worker children. Other commitments include improving the
safe-handling instructions and safety of application of pesticides and
fertilizers. PMI and PMK have also stated that they will engage with the
Kazakhstani government, local authorities and NGOs to address the ability of
children of migrant workers to attend local schools. PMI also is working with a
third-party organization to conduct monitoring of its implementation of these
initiatives.

Human Rights Watch welcomes these commitments and calls on PMI
to ensure swift implementation and rigorous monitoring of these and other measures
including through internal compliance mechanisms and through third-party
monitoring.

In addition, we recommend PMI revise their global policies
to ensure full respect for labor and other rights of workers engaged in
producing tobacco to be used in PMI products. We urge PMI and PMK to ensure
that prevention of child labor in tobacco farming remains a priority and that additional
mechanisms and policies are put in place to monitor and remedy child labor. PMI and PMK should also establish accessible complaint mechanisms that
ensure workers employed on farms producing tobacco for PMI and its subsidiaries
can safely report abuses and will have confidence that such allegations will be
immediately investigated in a fair and transparent manner. Guarantees to
protect migrant workers who speak up about abuses from reprisals or retaliation
by landowners are essential.

More detailed recommendations are set forth at the end of
this report.

Methodology

In March and April 2009, Human Rights Watch undertook
preliminary research to examine human rights abuses against migrant workers in Kazakhstan. This research was part of an ongoing multi-year project looking at abuses
against migrant workers in countries of the former Soviet Union. Human Rights
Watch interviewed migrant workers who had worked in various sectors, including
construction, services, and agriculture, as well as migration experts and
representatives from NGOs. As a result of that preliminary research, Human
Rights Watch determined that migrant tobacco workers were particularly
vulnerable to abuse and focused further research on them.

Human Rights Watch interviewed a total of 115 people for
this report. We conducted interviews with 68 migrant tobacco workers from
Kyrgyzstan from 39 families, including adults, ages 19 to 50, and five child
migrant tobacco workers, under 18. Human Rights Watch also saw and spoke with
children who had traveled to Kazakhstan with their families, but who were not
working.

The majority of interviews with migrant tobacco workers took
place during research trips to the Enbekshikazakh district of Almaty province,
the main tobacco-growing region of Kazakhstan, in June and September 2009. We
interviewed migrant workers working in tobacco fields in and near seven
villages: Chilik, Druzhba, Karaturyk, Koram, Lavar, Malybai, and Tabaksovkhoz.
In addition, we conducted interviews with migrant tobacco workers who had
worked in Kazakhstan in 2009 or in previous years at their homes in Kyrgyzstan
in March, April, August, and December 2009 and January and February 2010. In
addition to these interviews, Human Rights Watch also conducted a trip to
several villages in Kazakhstan for photo documentation in October 2009. No
interviews were conducted during this trip, but a Human Rights Watch researcher
witnessed children working in tobacco.

In addition to migrant tobacco workers, Human Rights Watch
interviewed 11 migrant workers and their families from Kyrgyzstan and Uzbekistan engaged in vegetable farming. These interviews provided valuable
information about the situation for other types of agricultural migrant workers
in the Enbekshikazakh district of Kazakhstan. This information is reflected in
this report only where it is relevant, for example in comparing the employment
and wage structures for tobacco farm workers to that of vegetable farm workers.

Interviews with migrant workers were conducted by three
Human Rights Watch researchers, including one native Russian speaker and two
fluent in Russian; a consultant to Human Rights Watch fluent in Russian, Kyrgyz,
and Uzbek; and a Human Rights Watch associate, a native Russian speaker. Some
interviews with workers were conducted in Russian. However, because most
migrant workers do not speak Russian, the majority of interviews by Human
Rights Watch representatives who do not speak Uzbek or Kyrgyz were conducted
with the assistance of a translator, translating from Kyrgyz or Uzbek into
Russian.

In most cases migrant workers and other interviewees were
interviewed individually, in private. In a few cases of interviews with migrant
workers, other family members were present during the interview. Migrant
workers were offered no incentives for speaking with us. Human Rights Watch
made no promises of personal service or benefit to those whom we interviewed
for this report and told all interviewees that the interviews were completely
voluntary and confidential.

Most workers interviewed for this report said
they were afraid that their employers might punish them for speaking about
their problems. At their request, we have changed their names. Pseudonyms
appear throughout as a first name and an initial.

We also interviewed farmers from Kazakhstan, three
representatives of the Kazakhstan agricultural workers’ union, a
representative of the main private employment agency for migrant workers in the
Enbekshikazakh district, one unofficial intermediary, village akims (or
mayors), and representatives of the consulates of Kyrgyzstan and Tajikistan in
Almaty. A request to the consulate of Uzbekistan in June 2009 went unanswered,
as did repeated requests for a second meeting with the consulate of Kyrgyzstan in November 2009.

Human Rights Watch also met with representatives from the
International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco
and Allied Workers' Associations (IUF), the International Labour Organization
(ILO), the International Labor Organization’s International Programme on
the Elimination of Child Labour (ILO-IPEC), the International Organization for
Migration (IOM), United Nations Development Fund for Women (UNIFEM), the
Organization for Security and Co-operation in Europe (OSCE), the Eurasia
Foundation of Central Asia, as well as Kazakhstani human rights and other NGOs
in Almaty, Kazakhstan.

In Kazakhstan, we met with representatives from Kazakhstan’s Ministry of Internal Affairs, the Ministry of Labor and Social
Protection, and the Ombudsman. In Kyrgyzstan we met with the chairperson of the
Kyrgyzstan State Migration Committee and one unofficial intermediary.

In June 2009, Human Rights Watch requested a meeting with
officials from Philip Morris Kazakhstan (PMK). In response by telephone, PMK
officials stated that they would require at least four weeks’ notice
before being able to meet with our representatives.

On October 13, 2009, Human Rights Watch sent a letter to
Philip Morris International (PMI) detailing the preliminary findings of our
research and requesting that they facilitate a meeting with PMK. PMI responded
in writing on November 10, 2009 and provided further information in subsequent
letters dated January 14, 2010, February 19, 2010, and March 11, 2010.

Company officials from PMI and PMK met with Human Rights
Watch in Almaty on November 13, 2009, and PMI executives met with Human Rights
Watch at our offices in New York on March 2, 2010. The results of these
meetings and correspondence are detailed below and copies of the correspondence
can be found in Appendix A.

Part 1: Background

1.1 Migration to Kazakhstan

According to 2007 World Bank data, Kazakhstan is the ninth-largest migrant-receiving country in the world.[1]
Many migrants from Central Asia and beyond come to Kazakhstan in search of
employment because of the country’s comparative economic strength in the
region. Kazakhstan is the largest country in Central Asia and has the third
largest economy in the Commonwealth of Independent States after Russia and Ukraine.[2]
It is an attractive destination for migrant workers who face poverty and
unemployment at home, particularly those from Uzbekistan, Kyrgyzstan, and Tajikistan, with which Kazakhstan maintains a visa-free regime.[3]

Migrant workers have been employed mostly in four sectors of
the Kazakhstani economy:[4]
construction, trade, services and agriculture. Migrant agricultural workers are
traditionally employed in seasonal tobacco and cotton farming, and increasingly
in vegetable farming. Most migrant workers in tobacco farming are typically
from Kyrgyzstan; workers in cotton are typically from Uzbekistan.

Consistent and reliable data on the total number of migrant
workers is limited. The absence of a visa regime with Central Asian and other
countries and a high level of informal employment in the sectors of the economy
with high rates of migrant worker employment hinder accurate recording of the
scope of irregular migration. Experts estimate that Kazakhstan may have
anywhere from 300,000 to one million migrant workers,[5]
the vast majority of whom are employed informally, due to a strict quota system
that prioritizes the hiring of skilled workers. For example, one expert
indicated that Kazakhstan had approximately 500,000 migrant workers in 2008,
only about 20 percent of whom were formally employed.[6]

Government data “on the hiring of foreign specialists
in Kazakhstan” indicate that there were 54,204 migrant workers formally
employed in 2008, and 28,008 in the first 11 months of 2009.[7]
Consistent with government policy prioritizing skilled migrant workers, those
employed officially were primarily highly to medium-skilled workers,[8]
with only 1,704 regular migrant workers officially employed as seasonal
agricultural workers in 2008 and just 22 officially employed in the first 11
months of 2009.[9]

According to government of Kazakhstan statistics, the vast
majority of officially employed foreign workers are from countries outside of
the CIS; in 2008, only 12 percent and in 2009, less than 10 percent of officially
employed migrant workers were from CIS countries.[10]
This is consistent with scholarly indicators that an overwhelming majority of
migrants working come from the three Central Asian republics of Kyrgyzstan,
Tajikistan, and Uzbekistan, and are employed irregularly.[11]

According to the consulate of Kyrgyzstan, in 2008, there
were a total of 55,000 migrant workers from Kyrgyzstan in Kazakhstan, fewer than one-quarter of whom, or approximately 12,000 workers, were employed officially.[12]
Government of Kazakhstan statistics give a much lower figure of 1,864 officially
employed citizens of Kyrgyzstan in 2008.[13] The consulate told
Human Rights Watch that approximately 2,500 migrant workers from Kyrgyzstan were engaged in agriculture in 2009, a significant decrease from 5,000 in 2008.
The vast majority was in the Enbekshikazakh district of Almaty province,
employed in tobacco and vegetable farming.[14] Philip Morris
Kazakhstan, the sole buyer of tobacco in the Enbekshikazakh district, estimates
that there were 3,500 migrant workers employed in tobacco farming in 2007 and
approximately 1,300 in 2009.[15]

Kazakhstan’s economy is by far the largest in Central Asia. It has demonstrated tremendous economic growth since 2000, supported by high
prices for oil, natural gas, and metals, its primary exports. Gross Domestic
Product (GDP) increased at an average rate of 10 percent per year, growing from
US$18.3 billion in 2000 to US$132 billion in 2008.[16]
The economy grew just 3.2 percent in 2008, as a result of weakening oil prices
and the onset of the global economic crisis.[17] According to the
World Bank, the country fell into recession in 2009, although government data
indicate that the country averted a recession, by growing 1.2 percent, in 2009.[18]

Migration to Kazakhstan from Kyrgyzstan, Uzbekistan and
Tajikistan is driven primarily by poverty, unemployment and poor
infrastructure.[19]
These countries have relatively high birth rates, creating increased pressure
on the labor market.[20]
All three countries have significant income differentials with Kazakhstan,[21]
and rely heavily on remittances from migrant workers working primarily in Kazakhstan and Russia to bolster their economies.[22]
Remittances constitute a significant portion of their GDP; for example,
remittances to Tajikistan constituted nearly 50 percent of its GDP in 2008.[23]
Although there is no clear data on remittance trends from Kazakhstan,
remittances in the region have slowed somewhat as a result of the 2008 global
economic crisis, although not as sharply as expected by many economists or as
in other regions.[24]

1.2 Kazakhstani Law and Policy Relevant to Migrant
Agricultural Workers

The quota system

Kazakhstan’s current migration policy prioritizes
temporary labor migration, particularly of skilled workers.[25] Employers
may apply for permits to hire foreign workers on the basis of an annual quota set
each year. This is based on local administrations’ analysis of the labor
market and employers’ applications indicating the need for foreign workers,[26]
and is set as a percentage of the economically active population. The Ministry
of Labor and Social Protection distributes the quota among the administrative
provinces of Kazakhstan.

The quota system identifies four categories of foreign
workers: executive personnel; highly-qualified specialists; skilled workers;
and workers employed in seasonal agricultural work.[27] Officially,
seasonal agricultural workers may only be hired from countries with which Kazakhstan has a bilateral agreement on cooperation in labor migration and social
protection of migrant workers.[28]
Currently, Kazakhstan has such an agreement only with Kyrgyzstan.[29]
There is no bilateral agreement with Uzbekistan, despite the large numbers of
migrant workers who come from Uzbekistan to southern Kazakhstan for the annual
cotton harvest.

Quotas in 2009 and the absence of quotas for agricultural
workers

The government reduced the quota for foreign workers in 2009
to 0.75 percent of the economically active population, or roughly 66,350
people, a 50 percent decrease from 2008. For the fourth category of workers
(seasonal agricultural workers), the 2009 quotas were set at 0.05 percent of
the economically active population, or approximately 4,146 people.[30]

In 2009 the Ministry of Labor and Social Protection did not
allocate permits for hiring foreign agricultural workers under the quota to
Almaty province, even though in this region tobacco as well as other crops are
in large part cultivated by migrant workers from Kyrgyzstan. In a March 2009
letter, the ministry informed the heads of the agricultural association (in
Russian, selkhozformierovanii) of Enbekshikazakh district that it would
not grant permits to hire foreign workers because it expected some 10,000
workers to lose their jobs in Almaty province. The ministry anticipated that
these unemployed workers would fill jobs in other sectors, including
agriculture.[31]
Notably, however, the vice minister of labor and social protection of Kazakhstan and other experts interviewed by Human Rights Watch consistently stated that
Kazakhstani workers typically do not seek employment in tobacco cultivation.[32]

The result was that in 2009 all migrant workers working in
the region, including all those interviewed by Human Rights Watch for this
report, were in irregular. Migrant workers who are in an irregular residency or
informal employment situation are even more vulnerable to exploitation by
employers and are more reluctant to seek redress through official channels because
they fear possible fines or expulsion from Kazakhstan.

Although international law does not specifically address
quotas, experts concur that quotas should be founded on sound economic and
employment data and should not impede legal employment of migrant workers.
Experts from the International Labour Organization (ILO) and the International
Organization for Migration (IOM) have indicated that Kazakhstan’s
existing strict legal employment framework contributes to the growth of
irregular migration in the country.[33]

Permits for hiring foreign workers

Employers wishing to hire foreign workers must obtain a
foreign workforce employment permit to do so. The procedures to obtain this
permit are highly bureaucratic, time consuming, and costly. For the first three
categories of workers (managers, specialists, and skilled workers), the process
of hiring a migrant worker requires employers to undertake at least eight
separate steps, including submitting at least 14 different documents to the
local authorities in order to obtain a foreign workforce employment permit. The
process may take up to eight months. The rules for the fourth category of
workers, seasonal agricultural workers, are simplified, and require only an
application to receive permission for hiring a foreign worker. In all cases,
employers must sign a written contract with the employee in order for the
employment to be lawful.[34]
In the event that a migrant worker wants to change employment, he or she is legally
limited to employers who have a foreign workforce employment permit.[35]

A migrant worker who works for an employer who has not
obtained a foreign workforce employment permit is subject to a fine and
mandatory administrative expulsion from Kazakhstan. Employers hiring migrant
workers without obtaining the necessary permit are also subject to fines.[36]
Experts have criticized the work permit system as contributing to irregular
migration, as few employers are willing to enter into the rigorous process and,
with the exception of agricultural workers, the system does not envision the
employment of low-skilled migrant workers.[37]

Residency registration for foreigners entering under the
non-visa regime

Most foreigners entering Kazakhstan under the non-visa
regime are required to register their place of residence with the Ministry of
Internal Affairs’ Migration Police Department within five days of their
arrival. Registration is free of charge.[38] Under a special
agreement with Kyrgyzstan, citizens of Kyrgyzstan may stay in Kazakhstan for up to 90 days without temporary registration.[39]
Registration can be issued for up to 90 days, and may be extended for another
90 days. Upon expiry of registration, a migrant must leave the country, unless
he or she is formally employed. Registration for foreigners with official employment
is done for the duration of the employment contract.[40]
Violation of the registration regime results in a warning or fines.[41]

1.3 Philip Morris International and Philip Morris
Kazakhstan

Philip Morris International

Philip Morris International, Inc. (PMI) is a United
States-based tobacco company incorporated in Virginia and headquartered in New York.[42]
Its primary center of operations is in Lausanne, Switzerland.[43]
PMI was originally a subsidiary of Altria Group, Inc., a conglomerate which
also included Philip Morris USA, Inc. and John Middleton, Inc.[44]
In January 2008, PMI spun off from Altria and became an independent company.[45]

PMI describes itself as “the leading international
tobacco company” and sells its products in over 160 countries.[46]
In 2008, PMI held an estimated 15.6 percent share of the total cigarette market
outside of the United States,[47]
and its net revenues exceeded US$25.7 billion.[48] PMI is currently
the market leader in 11 of the top 30 international tobacco markets[49]
and owns seven of the world’s top 15 cigarette brands, including
Marlboro, the world’s leading brand.[50]

PMI does not own any tobacco farms. It purchases tobacco
from leaf merchant companies and farmers in numerous countries, including Kazakhstan, as well as Brazil, Greece, Italy, Malawi, Poland, Thailand, Turkey and the United States. Leaf merchant companies and farmers are responsible for growing, harvesting,
curing, and sorting the tobacco. At the end of the season, the growers pack the
tobacco into bales and deliver them to an auction floor or receiving center
where PMI leaf buyers judge the quality of the leaves to be purchased.[51]

Philip Morris Kazakhstan

Philip Morris Kazakhstan (PMK) is an indirect, wholly-owned
subsidiary of PMI. In 1993, PMI purchased 99.5 percent of the Almaty Tobacco
Company, marking the first privatization of a state-owned company in the
consumer goods sector in Kazakhstan. In 2001, the company became known as
Philip Morris Kazakhstan, LLP. PMK owns a production complex in the Otegen
Batyr village on the outskirts of Almaty, has six regional offices, and employs
approximately 1,000 people. PMK produces eight international brands and six
local brands, which are distributed throughout Kazakhstan. The international
brands are also exported to five other countries in Central Asia.[52]

1.4 Structure of
Tobacco Farming in Kazakhstan

Tobacco cultivation in Kazakhstan takes place overwhelmingly
in the Enbekshikazakh district of Almaty province, approximately 120 kilometers
(75 miles) east of the former capital, Almaty. PMK is the sole purchaser of
tobacco produced in the district.[53]
Each year Kazakhstani landowners sign contracts directly with PMK for tobacco
to be produced. These landowners may farm tobacco themselves, but often hire
workers, usually from Kyrgyzstan, to do some or all of the tobacco cultivation.
Human Rights Watch could not identify independent estimates of the number of
migrant tobacco workers in Kazakhstan in 2009 or previous years; PMK estimates
that in 2009, there were approximately 1,300 migrant workers employed by
tobacco farmers in 2009, a decrease from 3,500 in 2007.[54]

Typically, migrant tobacco workers travel in families and
work together. Families may consist of a husband and wife pair with their
children, as well as with their brothers, sisters, or even multi-generational
families. In almost all cases, one family member—typically the only or
oldest man in the family, or, in the absence of an adult male, the oldest
woman—agrees on the general terms of work with a Kazakhstani landowner and
receives a single, lump-sum payment for the family’s work at the end of
the tobacco season.

The tobacco season

Tobacco farming in Kazakhstan typically involves an
approximately eight-month season of difficult, labor-intensive manual work. The
season generally starts in March or April, when farmers and migrant workers
begin to grow seedlings that are then planted in the ground in late May. For
approximately five months, tobacco workers tend to the tobacco plants,
watering, weeding, fertilizing and applying pesticides. Beginning in late July
or early August, and continuing for four to six weeks, workers harvest the
tobacco by pulling the leaves off of the plants by hand in four to five
separate harvests. They then thread the leaves with large needles and hang the
leaves to cure in the sun for two to three weeks. After the tobacco cures, it
is placed in a “steam room,” typically a small, underground room in
which water is heated to a high temperature, similar to a sauna. The tobacco is
steamed for several days in order for the leaves to be supple enough to be
packed into bales without cracking.

Payment structure

Migrant workers interviewed by Human Rights Watch generally
farmed a few hectares of tobacco,[55]
in a share-cropping structure with a Kazakhstani farmer, whereby the landowner
typically received half or more of the final payment from PMK for the tobacco
produced by the migrant workers. Notably, in contrast to this structure,
migrant workers engaged in vegetable farming in Kazakhstan typically lease the
land from Kazakhstani landowners and then sell vegetables directly to buyers
and keep all profits from the sales.

Migrant workers described to Human Rights Watch two dominant
models under which the tobacco cultivation and final payment were organized:

1)“50/50”: the migrant worker (or a family of workers)
and the landowner split equally the income from selling the tobacco produced on
the landowner’s farm.

2) “Plan”: workers are expected to produce a
specific volume of tobacco (generally approximately one metric ton of tobacco
per hectare) for which the farmer receives full payment. The farmer then also
gives the migrant workers an additional, smaller plot of land, typically
approximately a half a hectare or less, to produce tobacco for which the family
of workers will receive exclusive payment.

Typically in November, once the migrant workers have
harvested, cured, and steamed the tobacco, they press it into bales for
delivery to the PMK cigarette factory, where a tobacco leaf expert determines
the grade of the tobacco. Each season, PMK determines a price for each grade. PMK
pays the Kazakhstani landowner based on the amount of tobacco of each grade.
The landowner, in turn, pays the head of the migrant worker family a single
payment.

Migrant workers told Human Rights Watch that because they
very often had little or no cash of their own at the beginning of the season
and they did not receive regular wages, the landowner provided the head of the
family with advance payments or directly purchased their basic necessities,
including food, medications and medical treatment, as well as in some cases fertilizer
and other materials necessary for farming. The farmer assessed these costs,
often with a premium, and then deducted them from the final end-of-season
payment to the worker(s). Some landowners also paid upfront travel costs or
payments to intermediaries, if they were involved, and deducted these costs,
which they considered debts incurred by the migrant workers, from the final
payment.

1.5 Governmental and Corporate Responsibilities

Many of the abuses documented in this report
are perpetrated directly by Kazakhstani landowners and by intermediaries. The
Kazakhstani government has an obligation to implement international standards
and to enforce Kazakhstani laws designed to protect workers from these abuses.
Kazakhstan has ratified numerous international human rights treaties, which
guarantee all people equal and inalienable rights by virtue of their inherent
human dignity, and that place positive obligations on the government to protect
the rights of individuals against abuses, including forced labor, committed
both by private persons and state agents or entities. Kazakhstan also has the
obligation to implement basic labor protections of persons in employment and to
eliminate racial discrimination.[56]
It is obligated to take appropriate measures to prevent, punish, investigate,
and redress the harm caused to individuals’ rights and provide effective
remedies to those so harmed.[57]
The vast majority of the rights defined in these treaties apply equally to
migrant workers and other persons within Kazakhstan.

The International Labour Organization (ILO)
has developed a comprehensive body of conventions that address virtually every
aspect of workers' rights. Kazakhstan has ratified 17 ILO conventions,
including the eight core conventions, which concern forced labor, freedom of
association and the right to collective bargaining, non-discrimination, and
prohibition of child labor.[58]The International Covenant on Economic, Social and Cultural
Rights (ICESCR) recognizes “the right of everyone to the enjoyment of
just and favourable conditions of work.”[59] Such
conditions must ensure: remuneration, safe and healthy working conditions,
equal opportunity for promotion, as well as rest, reasonable limitation of
working hours and periodic holidays with pay, and remuneration for public
holidays.[60]
Regarding non-citizens' rights at work, the Committee on the Elimination of
Racial Discrimination's General Recommendation No. 30 states that once an
employment relationship has been initiated and until it is terminated, all
individuals, even those without work permits, are entitled to the enjoyment of
labor and employment rights.[61]
This recommendation is relevant for migrant tobacco workers in Kazakhstan, insofar as many of them have worked without the employers having received the
necessary employment authorization.

The Kazakhstani government must implement
existing laws prohibiting forced labor and guaranteeing basic labor rights,
including written contracts, regular wages, and worker safety, including
through inspections and consistent and dissuasive sanctions.

Corporate responsibility

While international human rights instruments
pay particular attention to the role of states as the primary duty holders
under international law in upholding these rights,[62]
businesses and other actors also have responsibilities. The preambles to key
human rights treaties recognize that ensuring respect for human rights is a
shared responsibility that goes beyond that of states, and the preamble of the
Universal Declaration of Human Rights (UDHR) explicitly states that the
responsibility is one for “every organ of society.”[63]
In addition, companies may be bound by international human rights standards,
including labor standards, as a matter of national law, insofar as such
standards have been incorporated into domestic legislation in the countries in
whose jurisdictions the companies operate.

The basic principle that companies have a
responsibility to respect human rights, including workers’ rights, has
achieved wide international recognition. Although an international consensus
has taken shape that companies have a responsibility to respect workers’
human rights, broad agreement does not yet extend to the important questions of
how to ensure that companies uphold this responsibility in practice and that
they do so everywhere they operate.[64]
Instead, the UN, other international organizations, companies, governments, and
nongovernmental organizations have developed various norms and guidelines,
which draw from international human rights and labor laws, that are intended to
guide businesses in their operations and projects. These norms reflect
an expectation that corporations should have policies and procedures in place that
ensure human rights abuses do not occur and to undertake adequate due diligence
to identify and effectively mitigate human rights problems.

This approach has been elaborated by John
Ruggie, the United Nations Special Representative of the Secretary General on
the issue of human rights and transnational corporations and other business
enterprises. Ruggie has developed a framework known as the “protect,
respect, and remedy” approach to business-related human rights issues
that in part outlines the basic steps that companies should take to respect
human rights, avoid complicity in abuses, and adequately remedy them if they
occur. The United Nation’s human rights body, the Human Rights Council,
has welcomed this approach and specifically requested that Ruggie “elaborate
further on the scope and content of the corporate responsibility to respect all
human rights and … provide concrete guidance to business and other
stakeholders.”[65]

Other standards developed to help guide
businesses in their operations and projects include the UN Global Compact, a
voluntary initiative which incorporates human rights commitments. Under the
compact companies pledge their adherence to ten “universally accepted
principles in the areas of human rights, labour, environment and anti-corruption”
deriving from, among other texts, the UDHR and the ILO's Declaration of
Fundamental Principles and Rights at Work,[66] and
commit to “align their operations and strategies” with these
principles.[67]
The principles include:

Principle 1: Businesses should support and
respect the protection of internationally proclaimed human rights;

Principle 2: make sure that they are not
complicit in human rights abuses.

Principle 3: Businesses should uphold the
freedom of association and the effective recognition of the right to
collective bargaining;

Principle 4: the elimination of all forms of
forced and compulsory labour;

Principle 5: the effective abolition of
child labour.

The ILO Tripartite Declaration of Principles
further recommends standards of conduct for multinational corporations and
others “in the fields of employment, training, conditions of work and
life and industrial relations” while operating in foreign countries.[68]
The declaration calls on multinational corporations “to provide
the best possible wages, benefits, and conditions of work,”
“maintain the highest standards of safety and health,” and to
guarantee freedom of association and collective bargaining, among
other worker rights.[69]

Another set of principles relevant to
multinational companies is the Organisation for Economic Cooperation and
Development (OECD) Guidelines for Multinational Enterprises, which comprise
“recommendations on responsible business conduct addressed by governments
to multinational enterprises.”[70]
They apply to companies in or from the 30 member countries of the OECD and 12
additional, non-OECD countries. The guidelines are addressed to all parent and
local entities within multinational enterprises (MNEs), which are defined
broadly as private or state “companies or other entities established in
more than one country and so linked that they may co-ordinate their operations
in various ways.”[71]
Regarding workers’ rights, these guidelines state, inter alia:

Enterprises should,
within the framework of applicable law, regulations and prevailing labour
relations and employment practices:

Contribute to the effective
abolition of child labour.

Contribute to the elimination
of all forms of forced or compulsory labour.

Take adequate steps to ensure
occupational health and safety in their operations.[72]

Philip Morris International and Philip Morris
Kazakhstan also have the responsibility to ensure respect for human rights at
all levels of the supply chain for their products.

As described in the summary and in more detail
in part 3 of this report, PMI has developed a Good Agricultural Practices (GAP)
policy related to various aspects of tobacco farming, including
prohibition on child and forced labor, workplace safety, and safe
use of pesticides. Human Rights Watch has determined that the policy has not
been sufficient to prevent and remedy the abuses documented in this report.
However, PMI and PMK have committed to taking important measures to
address the abuses and exploitative practices documented by Human Rights Watch.
These are outlined more fully below and in parts 3 and 4 of this report.

Part 2: Abuse
and Exploitation of Migrant Tobacco Workers in Kazakhstan

2.1 Introduction

Human Rights Watch research in 2009 found that migrant
workers employed in tobacco farming in Kazakhstan faced a range of human rights
abuses and forms of exploitation. The most pervasive practices
included landowners’ failure to provide written contracts, failure to pay
regular wages, underpayment of earnings, excessive deductions from earnings,
retention of passports, long working hours, insufficient rest, and substandard
living conditions. The failure to pay regular wages put workers at risk of
induced indebtedness, because in the event of a poor harvest deductions for
food, intermediaries’ fees, and other expenses paid by the landowner
during the season may have totaled more than the earnings migrant workers
receive for the tobacco produced.

Human Rights Watch’s research also
documented six cases which it determined to be forced labor or situations which
were akin to forced labor. In some cases, migrants were delivered into
these situations by intermediaries who promised them good earnings working in
tobacco. In some cases of forced labor, migrants reported that landowners
expected them to perform additional work, such as home renovation or farming of
other crops, all without pay. Migrant workers indicated to Human Rights Watch
that they were not in a position to refuse such work. In all cases,
landowners’ retention of workers’ passports served as the main
means of coercion for workers to remain in abusive situations. The
credible threat of forfeiting some or all of a season’s earnings—as
a result of the lack of regular wages and the single end-of-season payment
structure—also served as a significant penalty for workers who wished to
leave an abusive employment situation.

Kazakhstani workers may face many of the same abuses
described here. However, migrant workers are particularly vulnerable to abuse. They
are typically very poor, mostly do not speak Kazakh or Russian, and are living
in remote areas, far from governmental or non-governmental services. They
are generally unfamiliar with Kazakh labor protection laws and migration laws
as well as about how to obtain help. Furthermore, in the absence
of legal residency and employment status, migrant workers are also less able or
willing to seek redress from official sources. These factors
may serve as further obstacles for migrant workers in need of assistance.

Child labor in tobacco farming in Kazakhstan
is discussed in detail in chapter 4.

2.2 Absence of Written
Contracts

Under Kazakhstani law, every worker has the right to
conclude an employment contract with his or her employer.[73]
Labor relations are established by this employment contract.[74]
The bilateral agreement between the government of Kazakhstan and the government
of Kyrgyzstan on migrant workers also specifies that employment relations
between workers and employers are based on employment contracts.[75]

However, all migrant workers interviewed by Human Rights
Watch except two stated that they had not signed a written contract with the
Kazakhstani landowner employing them in 2009. The government’s decision
not to allocate permits to hire agricultural migrant workers to employers in
Almaty province in 2009 meant that landowners could not obtain the required
authorization to hire migrant workers and legally sign contracts with them
during that year. It is illegal for an employer to sign a contract with foreign
workers without receiving the necessary permission from the local authorities.[76]
Only two migrant workers told Human Rights Watch that they had signed contracts
with their employers in 2009. However, because the employment was not
authorized, these contracts had no legal force.[77]

In a letter to Human Rights Watch, PMI confirmed that a
“written contract between a farmer and his seasonal workers, whether from
Kazakhstan or abroad, is generally seen as very unusual.”[78]
In the absence of written contracts for each worker, the head of a migrant
family, typically the oldest person, usually the oldest man, had an oral
agreement with the landowner regarding the amount of land to be farmed, the
structure of sharing the final payment for the tobacco produced, and other
terms, as described below.

The absence of a written contract leaves workers vulnerable.
The Labor Code of Kazakhstan narrowly defines labor relations, and specifies
that labor relations arise in the presence of an employment contract.[79]
The code defines the employment contract as a written agreement between the
employee and the employee and defines an employee as “an individual
maintaining labor relations with the employer and directly performing work
under an employment contract.”[80]
According to labor law experts, even if labor relations might be established by
other means, such as witness testimony, in practice, in a court of law only a
written contract is accepted as evidence of the existence of labor relations.[81]
Any worker, including migrant workers who wished to challenge his
employer’s actions in a court of law would have great difficulty proving
that labor relations had existed without the presence of a written
contract.

Contracts in previous
years

Five migrant workers interviewed by Human Rights Watch stated
that they had had contracts in previous years, when the government had issued
permits for hiring foreign agricultural workers. However, even in these years
employers only signed contracts with the head of the migrant worker family,
rather than with each worker actually working. This is in violation of
Kazakhstani law and is an important protection issue further discussed below. The
contracts were written in Russian, a language that not all workers could
understand.

In previous years, some landowners had used a private
employment agency in Chilik, a village serving as a regional center, to help
them secure the required work authorization for hiring migrant workers, and to
draw up a written contract to be signed by the landowner and the head of a
migrant worker family. For example, Aida A., who worked in Kazakhstan during
the 2005-2007 tobacco seasons, told Human Rights Watch that each year she had a
written contract with her employer, facilitated through the agency. She and her
employer each had a copy of the contract.[82] Kapar K., who worked
with his sisters and brothers-in-law in Malybai in 2008 and 2009, also stated
that he had a contract through the agency in 2008, which stated that the worker
must “work honestly and not get drunk. And the employer must create good
working conditions.” The landowner also officially registered Kapar K. on
the migration registry.[83]
Zhumabek Zh., who had worked in tobacco farming in Kazakhstan for nine years,
said, “In past years, we had a written contract. We had to take it to the
agency. … This year there is only an oral agreement.”[84]

Human Rights Watch obtained copies of sample contracts
issued in 2007 and 2008 by the Chilik-based agency and signed between
landowners and the head of a migrant worker family, defined in the contract as
“the worker.” In most cases other workers, namely family members,
would also be working for this employer. However, they did not sign individual
contracts. Contracts were always written in Russian.[85]

Only one family interviewed by Human Rights Watch stated
that each adult worker had received a written contract, in their case in 2008.[86]

Migrant workers also told Human Rights Watch that employers
did not always respect the terms of the contract. A 2008 sample contract used
by the agency in Chilik indicated that the employer is obligated to pay the
worker monthly and in full no later than the tenth day of each month (for work
performed the previous month). The contract also established an eight-hour
working day and work only on weekends or holidays with the workers’
written permission.[87]
No migrant tobacco workers with whom Human Rights Watch spoke who had worked in
2008 said that they had been paid monthly. Rather they were paid only once, at
the end of the season. They also regularly worked more than eight hours, and
without days off.

Other obligations were also not met. The sample contracts
provided by the Chilik-based agency required both parties to have a copy.
However, migrant workers who signed contracts with their employers told Human
Rights Watch that they did not receive a copy of it. For example, Almazbek A.,
who has been traveling with wife and children seasonally to Kazakhstan to farm
tobacco for eight years, told Human Rights Watch, “The landowner drew up
the contract … He never gave us a copy of the contract.”[88]

In other cases prior to 2009 workers simply did not have
written contracts. For example, Gulnara G. said that she or her husband had
been coming from Kyrgyzstan to Kazakhstan for eight years to farm tobacco with
their children and never signed a written contract, only having an oral
agreement with the employers.[89]

2.3 Failure to Pay
Regular Wages and Payments of Less than Minimum Wage

Under Kazakhstani labor law employers are required to pay
each worker at least monthly and payment cannot be lower than the national
minimum salary.[90]
All migrant tobacco workers interviewed by Human Rights Watch stated that
Kazakhstani landowners paid them no regular wages during the eight to nine
months that the workers cultivated tobacco. Instead, the landowner paid the
head of the migrant worker family one lump sum payment at the end of the
tobacco harvest, after the tobacco has been delivered to Philip Morris
Kazakhstan and PMK has paid the landowner based on the volume and grade of the
tobacco.[91]
Philip Morris International confirmed this practice, stating in a letter to
Human Rights Watch, that “workers, domestic and foreign alike, receive
the bulk of their pay from the farmers at the end of the season (which is
explained by the fact that the majority of their earnings—and the
farmers’ payment from PMK—depends on the crop yield).”[92]

Human Rights Watch research found that other members of
migrant families who work on the farm, including both children and adults were
often in a situation of simply “working for the family,” and did
not earn any payment themselves, even after the end of the season. For example,
Aisha A., 22, who was working in Malybai in 2009 with her mother-in-law and her
11-year-old brother-in-law, told Human Rights Watch, “We’re one
family. I just help. They [the family] won’t pay me. At the end of the
season maybe they’ll just give me a bit of money.”[93]

In cases documented by Human Rights Watch in 2009, final
payments to heads of household, prior to any deductions for expenses made by
the employer, ranged from US$1,432 to US$3,363, or approximately US$159 to
US$374 per month for a family typically cultivating tobacco between eight and
18 hours per day, with few days off, for nine months.[94] In
some of these cases, wages fell below the minimum wage and well below the
average wages for Kazakhstan, even for manual work. In 2009, the minimum
monthly salary in Kazakhstan was 13,717 tenge (US$91), and in 2010 it was
raised to 14,952 tenge (US$99).[95]
Official data indicate the average monthly wage in Kazakhstan for December 2009
was approximately 82,180 tenge ($560), and even workers in the lowest paid
sector, fishing, earned approximately 31,258 tenge ($213) per month.[96]

For example, Sharapat Sh., 41, who worked in Malybai for
nine months in with her 15-year-old daughter and adult son, told Human Rights
Watch that her family of three’s gross salary, prior to the
employer’s deductions, totaled 321,000 tenge (US$2,129), or 11,888 tenge
(US$79) per person per month. [97]
Nurdin N., 43, who worked in Karaturyk in 2009 together with his wife and
13-year-old son for nine months, stated that he and his family earned a gross
salary of just over 216,000 tenge ($1,432), or approximately 8,000 tenge
(US$53) per person per month–well under the minimum wage.[98]

The practice of paying the head of the family of workers
only at the end of the season allows the landowners to exercise an unreasonable
degree of control over the workers and can be a contributing factor in
situations of forced labor, as described below (See Forced labor). Should workers
want to leave their employer prior to the end of the season, due to abusive
labor practices or for any other reason, they would forfeit any wages owed to
them.

2.4 Deductions from
Final Payments

Migrant workers interviewed by Human Rights Watch said that
they often had little or no money of their own at the beginning of the tobacco
season, and, in the absence of regular wages, had no other funds on which to
subsist for the eight to nine months during which they were cultivating
tobacco. Almost all migrant workers interviewed by Human Rights Watch stated
that they relied on the landowner to provide the head of their family with food
and other provisions, either directly or through small cash advances.

Food provided by landowners typically included cooking oil,
rice, buckwheat, macaroni, canned vegetables, and similar items. Meat was sometimes
provided, although it was typically more expensive.[99]
Should the workers require medication and medical treatment, the employer
usually paid for those expenses as well.[100] The employer may have
also paid directly for the migrants’ transportation by car from their
home villages in Kyrgyzstan, as well as for intermediaries’ costs, which
can be exorbitant (see below, Induced indebtedness). In some cases the parties
shared equally the cost of fertilizers and other farming materials,[101]
or the workers paid for these entirely.

While accommodation was usually provided to workers free of
charge, the landowner deducted the other living expenses–often as well as
travel costs, payments to intermediaries, and sometimes the costs of farm
supplies–from the final end-of-season payment to the migrant worker
family. In cases documented by Human Rights Watch in 2009, the deductions in
some cases reduced the final payment by a significant amount, ranging from 34
to 60 percent.[102]

The practice of deductions from single season payments to a
family of workers falls entirely outside the scope of Kazakhstani law. First,
while Kazakhstani law allows for deductions from regular wages, single end-of-season
payments are not regular wages. Second, Kazakhstani law tightly regulates
deductions from wages by, for example, making them subject to approval by a
court and limiting the amount to no more than fifty percent of the wage due to
the employee.[103]

A few migrant workers told Human Rights Watch that they were
able to supplement their food supply by growing some of their own vegetables.[104]
Some workers said that they were able to buy food and other living expenses by
doing some additional odd-jobs for other employers (such as additional farming
in tobacco or vegetables, house renovations, or similar work) who would pay
cash.[105]
By taking on additional employment, these workers were able to cover some or
most of their expenses for the season. However, not all landowners allowed
migrant workers employed on their farms to engage in such work with another
employer, as described below.

2.5 Lack of
Transparency and Deception in the Final Payment

Although some landowners and heads of migrant worker
families each kept written records of expenses that will later be deducted from
the workers’ final payment,[106]
Human Rights Watch research revealed that this practice was not universal, and in
some cases landowners did not provide a transparent accounting. Eight heads of migrant
worker families told Human Rights Watch that they believed they had been
cheated in the final payment paid by the landowner, as a result of excessive,
arbitrary or unexpected deductions, or if the landowner was not honest about
the total sum paid for the tobacco by PMK.[107]
Disagreements about the final payment occurred even in cases when migrant
workers participated in the delivery of tobacco to PMK at the end of the season
where the tobacco leaf would be judged and thereby would more likely be able to
know the sum paid to the landowner by Philip Morris Kazakhstan.

Migrant workers’
participation in delivery and purchase of the tobacco

At the end of the season, the landowner delivers the tobacco
to the PMK factory for purchase, where a tobacco leaf expert determines the
grade of the tobacco. Each grade of tobacco is given a price per kilogram.[108]
According to PMI officials, the prices are publicly displayed.[109]
PMK pays the landowner directly, based on the amount of tobacco of each grade.
The landowner then pays the head of the migrant worker family, after deducting
expenses.

PMI told Human Rights Watch that the participation of the
head of a migrant worker family in the tobacco delivery facilitates
transparency in the payment process: “When tobacco is brought to the PMK
buying point, both the farmer and a representative for the Kyrgyzstani worker
family are usually present when PMK specialists determine the grade of the
tobacco, weigh the tobacco, and determine the total amount payment for the
tobacco. This practice allows workers to know what revenue the farmer will get
for the crop and to accurately calculate their own share of the crop
income.”[110]

Some migrant workers interviewed by Human Rights Watch
confirmed that they went together with the landowner to deliver the tobacco to
PMK at the end of the season. According to Bekbolot B., who in 2009 was farming
tobacco for the second year in a row for a landowner in Koram, “We
deliver the tobacco to Philip Morris [Kazakhstan]. Without us, they won’t
take the tobacco from the landowner.”[111] Kapar K., who
worked in Malybai in 2008 and 2009 said that, “My employer has an
agreement with Philip Morris [Kazakhstan]; we go with the employer to deliver
the tobacco and receive the money at the end of the season.”[112]

Testimony from other migrant workers and one employer indicated
the practice of both landowner and head of family delivering the tobacco for
purchase is not universal. According to an employer in Malybai, who regularly
hires migrant workers, “We take the tobacco to [the Philip Morris
factory] ourselves. Philip Morris [Kazakhstan] does not require that the
migrants come with us for the end-of-season accounting.”[113]
Sharapat Sh., 41, who worked from March 12 to December 5, 2009 in Malybai with
her 15-year-old daughter and adult son, told Human Rights Watch that although
she had been the head of her family and had negotiated with the landowner at
the start of the season, “When they delivered the tobacco, I wasn’t
at the Philip Morris [Kazakhstan] factory. Some men who worked near us on the
fields went with the landowner. I don’t know how much Philip Morris [Kazakhstan] paid our landowner.”[114]

Vulnerability to being cheated

When a migrant worker family did not participate in
delivering the tobacco to PMK there were fewer safeguards against being
cheated. Sharapat Sh., for example, stated that her landowner took deductions
from her payment, including for things that Sharapat Sh. did not understand, as
well as for residency registration, despite the fact that no migrants were able
to be officially registered, owing to the absence of official quotas. “He
took the deductions…The transport [from Kyrgyzstan] cost me 55,000 tenge
(US$365), food was 60,000 tenge (US$398), then 20,000 tenge (US$133) for
something else, and 6,000 tenge (US$40) for residency registration,” said
Sharapat Sh. “After the deductions, the landowner paid me 180,000 tenge
(US$1,194) … for 2.5 tons of tobacco.”[115]

However, even when workers went to the PMK factory with the
landowners, this did not guarantee that the system was transparent or that the
worker did not face unexpected deductions or deception in the final payment.
Nurdin N., 43, who worked in Karaturyk in 2009 together with his wife and
13-year-old son, told Human Rights Watch, “I went together with the
landowner to deliver the tobacco to Philip Morris [Kazakhstan]. I don’t
know how much they paid the landowner, but the landowner gave me 121,000 tenge
(US$803). That’s after the deductions. For our transportation [from Kyrgyzstan] he took 55,000 tenge (US$365), for food, 40,000 tenge (US$265), and also
something for our residency registration.”[116]
As noted above, in the absence of an official quota for hiring agricultural
workers, in 2009 no migrants received residency registration.

Zhumartbek Zh., 29, who worked in tobacco farming for the
first time in 2009 in Malybai together with his wife and two children, ages 14
and 16, told Human Rights Watch, “I was present at the delivery of the
tobacco to Philip Morris Kazakhstan. My family and I produced and delivered 4.7
[metric] tons to Philip Morris [Kazakhstan]. Philip Morris [Kazakhstan] paid the landowner 1,200,000 tenge (US$7,960) [for the 4.7 tons].”[117]
Under the “plan” agreement with the landowner, Zhumartbek Zh. and
his family were to produce two metric tons for which the landowner would
receive exclusive payment; Zhumartbek Zh. was to have been paid for the
remaining 2.7 metric tons of tobacco. However, according to Zhumartbek Zh.,
after the landowner’s accounting and numerous deductions, Zhumartbek Zh.
received 350,000 tenge (US$2,321), less than 30 percent of the final payment to
the landowner.[118]

Zhumartbek Zh. described the lack of transparency and the
deductions from the final payment:

[The landowner] took some deductions from me [my final payment].
One deduction was for 12,000 tenge (US$80). He said that Philip Morris [Kazakhstan] took this money from him. He called it ‘Services of Philip Morris [Kazakhstan].’ But then I learned that he didn’t take this deduction from anyone
else. Only from me. I didn’t understand at all. What these
‘services’ are all about I don’t know.

He also deducted 70,000 tenge (US$464) for the trip and
70,000 tenge for food. According to my accounting, the food costs were not more
than 50,000 tenge (US$332). He must have been giving us some very expensive
foodstuffs.

And then, sometime after you had
visited us [a Human Rights Watch researcher spoke with this family in early
October in Kazakhstan] a group of about 10 foreigners came. Swiss and from some
other places. They said they were from the United Nations. They saw how we were
working, looked to see if children were working or not. Then the landowner
withheld from our final payment 5,000 tenge (US$33). He said that it was a fine
for talking to these people. He didn’t say anything after you had
visited.”[119]

Another worker, 39-year-old Umut U., who, together with her
four children ages 10, 11, 13, and 14, worked for this same landowner in 2009
confirmed that the employer levied this same “fine.” “And he
also withheld 5,000 tenge ($US33) for speaking with ‘the foreigners from
the UN.’ But I didn’t even speak with them!” she stated.[120]

Although he felt cheated, Zhumartbek Zh. did not feel he had
any recourse. As described below, the landowner also forced Zhumartbek Zh. and
his family to do additional work farming onions and gathering firewood without
pay, a situation that amounted to forced labor. Zhumartbek Zh. felt his only
option was to look for a different employer next year. “I’m not
going back to work with him. I’ll look for someone else.”[121]
In the absence of written contracts and with no accessible, meaningful
mechanisms for complaint provided by the Kazakhstani government or PMK, migrant
workers had few viable options to seek redress for this kind of treatment.

2.6 Induced
Indebtedness and Debt Bondage

As described above, the lack of regular wages and the system
of single end-of-season payment and deductions for expenses made workers highly
dependent on their employers. This system also put them at risk of induced
indebtedness, particularly if the harvest has been poor and the total volume of
tobacco sold is less than anticipated. In some cases the deductions for
expenses totaled more than the final payment owed to the migrant worker, and
the worker and his or her family became indebted to the landowner. In cases
documented by Human Rights Watch, the high cost of intermediaries was a
particular problem.

Once indebted to the employer, workers had no money to
return home and were typically expected to work another season or seasons in
order to pay off their debts. Workers were able to change employers only if the
second landowner pays off the debts to the first. In the cases described below,
Human Rights Watch determined that migrant workers became victims of debt
bondage.

Ulkan U. and her
children

In April 2007, Ulkan U. came to Malybai with her children,
then ages 4, 10, 12, and 15, on the promise of an intermediary for work in
tobacco farming earning 300,000 tenge (US$2,335, at the time) for one tobacco
season.[122]
A landowner, Shokan Sh., paid the intermediary 100,000 tenge
(US$779)—presumably for transportation and a recruiting fee—and
expected Ulkan U. to repay this money at the end of the tobacco season. The
intermediary took the family’s passports and was never seen again. Ulkan U. worked together with her three oldest children on one hectare of tobacco for the
2007 tobacco season. According to Ulkan U., “We produced one [metric] ton
of tobacco, but after all the expenses, we still had 91,000 tenge (US$708) in
debt.”[123]

As discussed further below, recruiting,
transporting, transferring or receiving persons by force, fraud, deceit or
other coercive tactics for the purpose of placing them into conditions of
forced labor or practices similar to slavery or servitude constitutes
trafficking, elements of which are clearly present in cases like that of this
family.[124]

In 2008, after an argument with Shokan Sh., Ulkan U. found
another landowner who paid her debt to Shokan Sh. Working on 1.5 hectares in
2008, Ulkan U. and her children managed to earn 335,000 (US$2,706), but after
the deductions for expenses, including the remaining debt, Ulkan U. was left
with just 84,000 tenge (US$679).[125]
She stayed in Kazakhstan to work again in 2009 for yet a different employer in
order to try to earn enough money to travel home with her children and to
justify the efforts of the previous two seasons. She told Human Rights Watch
that the employer had been arguing with and beating her oldest son, apparently
to make him work harder. During a second interview, she stated that the
beatings stopped following Human Rights Watch’s first visit. She and her
children are also doing additional work with another employer to help cover
their expenses.[126]

A family from Karasuu

A young couple, Mirgul M. and her husband Nurbol N.from
Karasuu, Kazakhstan, came to Kazakhstan in 2006 with the help of an
intermediary. According to Mirgul M. and Nurbol
N.,“[The intermediary] promised us work in vegetable farming, but
then dumped us in this hellish work in tobacco.” The tobacco farm owner
told the couple that he paid the intermediary 5,000 tenge (US$37) for each of
them, although he did not expect them to pay him for these costs. The couple nevertheless
entered into debt, as the intermediary demanded a 12,000 tenge (US $89) fee. In
these circumstances, the couple felt that they had no choice but to work for
the tobacco farmer to whom they had been brought. Due to poor conditions
and their own farming inexperience, by the end of the season, they only earned 25,000
tenge (US$186) for the 2006 season and spent nearly half to pay the
intermediary. The remainder was spent on their living expenses.[127]

In early 2008, the same
intermediary convinced Nurbol N.’s, mother, Zhazira Zh., that her son was in
debt and that she needed to travel to Kazakhstan to assist him. Zhazira Zh.
took her 12-year-old daughter, Raikan R., with her, and upon arrival in
Malybai, the intermediary demanded 50,000 tenge (US $409) from Nurbol N. to
hand over his mother to him.[128] In order to pay the intermediary, Nurbol N. and
his wife were forced to borrow money from another local tobacco farmer, for
whom they then worked for in order to pay off their debt to him.[129] The intermediary’s treatment of this family
also included elements of trafficking.

The family of four, including the now 14-year-old girl, was
still working in June 2009 in Malybai to pay off the debt to this landowner. In
2008, because of a poor harvest and deductions for food and other expenses
totaling 110,000 tenge (US$889), the family of four only earned a total of
30,000 tenge (US$242). They used most of these earnings, 20,000 tenge (US$163),
to pay down their debt. Because they do not have enough money to travel home,
they feel forced to remain for the next season in order to pay off the
remaining debt and earn enough at least to cover their travel expenses.[130]
“The work in tobacco is difficult, but we must pay off the debt, and
there is no other option, except to farm tobacco,” said Mirgul M.[131]

Damira D. and her
children

Human Rights Watch also documented the case of 26-year-old
Damira D., a single mother of two small children from Nookat, Kyrgyzstan, who had been working for more than a year in a debt bondage situation in the village
Druzhba. Damira D. came to Kazakhstan late 2007 to work for a landowner,
“Rakhim R.,” who promised her that all her expenses would be
covered. She spent several months growing seedlings and then planting them in
April and May 2008. In May 2008, the landowner announced that after seven months
of work she owed him 50,000 tenge (about US$400) for expenses including food
and firewood which she used during the colder months.[132]
When Damira D. protested, Rakhim R. threatened her, getting angry and yelling
and cursing at her. “This scared me and I didn’t like being around
this,” Damira D. said. Damira D. told about her circumstances to a
vegetable farmer in the same village. This farmer paid Damira D.’s
“debt,” to the tobacco farmer, and Damira D. went to work for him.

When Human Rights Watch met Damira D. in June 2009, she had
been working without pay for the vegetable farmer for over a year, doing both
domestic work in the landowner’s house and, during the agricultural
season, vegetable farming. She told Human Rights Watch, “I have not yet
paid back the 50,000 tenge. For the last year I worked with [this farmer],
during the fields in the summer, and then at his house. I haven’t earned
any money.” Having no money and two small children to support, she felt
trapped in the situation and felt hopeless as to earning any money for the
tobacco farming she did for Rakhim R. “I know that Rakhim sold his
tobacco to Philip Morris [Kazakhstan], but they do not know that that tobacco
is actually mine. It is a result of my hard work,” she said.[133]

A family from Karatash

In a December 2009 interview, Nabimukhamad N., from
Karatash, told Human Rights Watch that his sister, 48, who had gone to Malybai
and then Dostyk in 2009 with her husband and two sons, had fallen into a
situation of debt bondage. The situation he described resembled strongly the
cases of debt bondage described above. He told Human Rights Watch:

They are living in really difficult circumstances. This
year, they weren’t able to earn enough and ended up in debt and were
forced to stay with the employer. She told me over the phone that the tobacco
grew poorly, especially because there was little water for irrigation. She also
said that things with the employer were a bit difficult. They want to work for
a different landowner, but don’t know how they can get out of the debts.
The children aren’t going to school. Right now the family is trying to do
some work on the side to earn money.[134]

2.7 Retention of
Identity Documents and Confinement to Farms

In half of the families whose cases Human Rights Watch
documented, Kazakhstani landowners retained migrant workers’ passports
and children’s birth certificates. At a minimum this had the effect of
making workers feel that they had no choice but to complete the season’s
work and pay off any expenses incurred by the landowner. In more extreme cases,
passport retention was used as a means of forcing workers to remain in abusive
employment situations. Some intermediaries also took workers’ passports
and handed them over to the landowners upon delivery of the workers. Passports
and birth certificates were only returned at the end of the tobacco season,
following the worker’s successful completion of the harvest. Some workers
indicated that the absence of their passport prevented them from leaving the
farms where they worked.

In six cases, Human Rights Watch documented situations it
deems to be forced labor, or situations analogous to forced labor, whereby
retention of identity documents was the main reason given to Human Rights Watch
as to why workers felt compelled to remain in abusive situations. These cases
are described in a separate section below. In other cases, workers reported
that they voluntarily asked the employer to keep their passports to prevent
them from getting lost or stolen.

Involuntary retention of passports and birth
certificates violates the right to freedom of movement and is prohibited by
Kazakh law.[135]Retention of passports increases workers’ vulnerability and
dependence on the landowner, particularly as they are often living in very
remote areas and would have to travel significant distances to access any
assistance.

Alym A., who worked in Karaturyk in 2009 told Human Rights
Watch, “As soon as we arrived, the landowner took our documents. Well, he
paid for our transport and food, after all. After the work is done, when we
settle up with him, then he will return my passport to me.”[136]
Similarly, Ainagul A. and Ikram I. who both worked in Malybai in 2009 for
different landowners, each stated that at the beginning of the season the
landowner had taken their passports.[137]

Some workers described to Human Rights Watch the
restrictions on their movement as a result of not having their passport in
their possession. In some cases, described below, retention of a passport
served as a primary factor in coercing workers to remain in situations of
forced labor or analogous to forced labor. Nurdin N. told Human Rights Watch,
“When we arrived in Malybai [from Kyrgyzstan] in 2009, our employer
immediately took my passport. He paid for our transportation [by car from Kyrgyzstan] after all. In Malybai we could move around only near our fields. I didn’t
have a passport! Where were we going to go? The landowner returned the passport
after the payment.”[138]
Sharapat Sh., who was also in Malybai from March to December 2009 with her two
children, ages 15 and 18, told Human Rights Watch, “[The landowner]
immediately took my passport after our arrival. He said I wouldn’t need
it. He gave it back after the final payment. … Without the passport we
couldn’t really go anywhere. We could only go to the neighbors nearby to
do a bit of extra work.”[139]

Nadira N., from Karatash, who worked for several years in
Kazakhstan, told Human Rights Watch that she traveled with an intermediary who
charged 10,000 tenge (US$66) for her services assisting with the trip and
identifying an employer. As part of the agreement, each year the intermediary
handed the workers’ passports over to the employer. “You give your
passport to Chinara Ch. for the trip [to Kazakhstan] and then she gives it to
the employer,” Nadira N. told Human Rights Watch. Nadira N. also gave her
employer the birth certificates of her children, who worked with her in Kazakhstan while they were 11, 15, and 20 years old.[140] Human Rights
Watch interviewed this intermediary, Chinara Ch., who confirmed the practice
saying, “Passports stay with the landowner, so the workers don’t
run away. They’ve paid for the workers’ transport and for the food,
after all, haven’t they!?”[141]

Other workers stated that they had their passports with
them,[142]
or told Human Rights Watch that they had voluntarily given their passports to
the landowners for safekeeping for the duration of the tobacco season.
According to Sabir S. who was working with his wife and two children in Malybai
in 2009 and had previously worked in Karaturyk, “We give our passports to
him [the landowner]. We can’t be out in the fields with our passports.
We’ll lose them. He [the landowner] gives them back at the end of the
season.”[143]
Ulkan U., who worked in Malybai with her three children, said, “I gave
my passport to [the landowner]. I gave him our identity documents myself, so
that they wouldn’t get lost.”[144]

2.8 Forced Labor

Human Rights Watch documented six cases that it considers constitute
or are analogous to forced labor, arising from a particularly abusive
convergence of all of the practices described above. In some
cases of forced labor, workers were expected to do other work at the
landowners’ home, such as cleaning, renovation, and other farming for the
landowner without pay in addition to farming tobacco. In some cases,
intermediaries promised migrant workers good wages and working conditions in
tobacco farming, but the actual employment circumstances proved to be
exploitative. In all cases described in this section, the
employment conditions in which the workers found themselves were far from those
that they had been promised and to which they had had consented voluntarily.

The involuntary retention of identity documents served as a
means of coercion and of confinement for migrant workers who found themselves
in situations of forced labor. Without a valid passport, a
migrant stopped by the police will be detained in order to establish his or her
identity and will typically be expelled from the country. Migrants without a
passport are also very likely to have difficulty leaving Kazakhstan and
reentering Kyrgyzstan and to be forced to pay large bribes to avoid detention
and cross the border. Fearing detention by police and expulsion, or problems at
the border, workers are afraid to leave the employer or intermediary and may be
forced to endure abusive work and living conditions to which they did not
initially consent.

Even if workers were able to access their passports, the
credible threat of forfeiting some or all of a season’s earnings, as a
result of the lack of regular wages and the single end-of-season payment, also
served as a significant penalty for those who may have wished to leave an
abusive employment situation.

International and
national legal standards

Human Rights Watch believes that the convergence
of abuses described in this section meets the definition of forced labor, which
is prohibited under international and Kazakhstani law. According to the ILO
Convention on Forced Labor (No. 29) forced or compulsory labor “shall
mean all work or service which is exacted from any person under the menace of
any penalty and for which the said person has not offered himself voluntarily.”[145]
The ILO elaborates examples of “menace of penalty” to include:
“physical violence against a worker or close associates, physical
confinement, financial penalties, denunciation to authorities-including police
and immigration-and deportation, dismissal from current employment, exclusion
from future employment, and the removal of rights and privileges.”[146]
Examples provided by the ILO of the involuntary nature of work include:
physical confinement in the work location, psychological compulsion (order to
work backed up by a credible threat of a penalty), induced indebtedness (by
falsification of accounts, excessive interest charges, etc.), deception about
types and terms of work, withholding and non-payment of wages, and retention of
identity documents or other valuable personal possessions.[147]

Article 8 of the International Covenant on
Civil and Political Rights (ICCPR) prohibits “forced or compulsory
labour.” The constitution of the Republic of Kazakhstan guarantees the
right to freedom of labor. The Kazakhstan labor code also guarantees the right
to freedom of labor and prohibits forced labor.[148]

In all of the cases documented in this section
workers had entered the employment voluntarily, but this has no bearing on the
nature of these situations as forced labor. The ILO states that workers have
the right to revoke freely-given consent, noting “many victims enter
forced labour situations initially of their own accord … only to discover
later that they are not free to withdraw their labour. They are subsequently
unable to leave their work owing to legal, physical or psychological
coercion.”[149]

In four cases victims of forced labor Human
Rights Watch interviewed were deceived by intermediaries who delivered them to
employers who subjected the workers to forced labor. These cases can be
considered trafficking or akin to trafficking, which the United Nations
Convention against Transnational Organized Crime and its Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women and Children (UN
Trafficking Protocol) defines to include act of recruitment, transport,
transfer, receipt, sale, or purchase of human beings by force, fraud, deceit or
other coercive tactics for the purpose of placing them into conditions of
forced labor or practices similar to slavery or servitude.[150]
Kazakhstan is a party to the United Nations Trafficking Protocol, which
obligates state parties to take a range of legislative and policy measures to
“prevent and combat trafficking in persons,” and “protect and
assist the victims of such trafficking, with full respect for their human
rights.”[151]

Almira A. and her family

Almira A., 45, traveled with her family to Malybai in May
2009. An intermediary, acting both as a taxi driver and as a recruiter, told
her that they would earn a minimum of 350,000-400,000 tenge (US$2,320-2,655)
working in tobacco fields. However, Almira A. and her family found themselves
working in very different employment conditions than those to which they had
agreed with the driver and later with the landowner.

I went together with my husband, my son, 24, and my
daughter, 16. … For driving the four of us, the landowner paid the taxi
driver 75,000 tenge (US$498) and then immediately took our passports. …
For the whole season our passports were with him.

We cultivated tobacco. We didn’t do any work on the
side for another employer. The landowner didn’t allow us to. He screamed
and cursed at us, when we wanted to earn some money on the side. He said that
he paid for us so that we will work for him. …

Instead of working on the side, we worked for him in his
other fields. We cultivated onions. For free. For this work he didn’t pay
us anything. Or we washed his laundry, or painted the walls of his house and
barn. We were like slaves to him. He treated us really badly. It’s true,
he didn’t beat us, but cursed at us. We couldn’t defend ourselves,
since we were on his land after all.

We worked for 11 to 13 hours a day. The work was really
hard. …. Work, work, work. It was that way from morning to night.

We didn’t have our passports, and so we
couldn’t go anywhere. We didn’t even go to the neighboring fields.
We were afraid of our landowner.

Of course there was desire to leave and throw it all away,
but how!? Our passports were with the landowner, and we had no money. If we
left, then all of our work would be for nothing. And without money, how would
we even get back home from there?[152]

The landowner told Almira A. and her family that of the 1.5
hectares of land that they worked, he would keep the income from 1.3 hectares
and they would be able to keep the profit from the remainder. This was a much
smaller percentage of profits than is typical under the “plan”
payment system, described in the background section above. After the deductions
for travel and food, the Almira A. and her family received 120,000 tenge
(US$796). “Is this really proper payment for nearly a whole year of work?
I will not go back to Kazakhstan next year. I will never go back.”[153]

Zhumartbek Zh. and his
family

As described above, Zhumartbek Zh., his wife and two
children worked in tobacco farming for the first time in 2009 in Malybai for a
landowner who deceived them in the final payment. When Zhumartbek Zh. was
considering going from Kyrgyzstan to Kazakhstan in March 2009, an intermediary,
Chinara Ch., who is described elsewhere in this report, promised him good work
with good wages for the family in tobacco farming. However, Zhumartbek Zh. and
his family found themselves in a situation where they were forced to do
additional work for the landowner, without pay, and felt they could not leave
because their passports had been confiscated. In the end, the landowner also
cheated Zhumartbek Zh. of his earnings for the tobacco work, as described
above. Zhumartbek Zh. described his experience with the intermediary and
working for the employer:

[The intermediary] promises one thing, that everything will
be great, and she takes you there, but it’s completely different.
There’s no way out, and so people [like me] work. And besides the
tobacco, we did additional work for the employer. As soon as we got there
our passports were taken. ... After that you can’t go anywhere and
can’t leave.

We even gathered firewood for his house. And even after
that we were not good enough for him. [If we tried to refuse the additional
work], that’s when the real trouble begins: insults and humiliation.
… He argued and cursed, fought with me. And we grew and gathered about
50-60 tons of onions for him. For free! And even gathered the firewood for him
for free! But even after that we were not good enough for him … We almost
didn’t have any days off. We worked. We couldn’t not work.
…

If he were a good person, I would go there again this year.
But it’s not even that I don’t want to go there again, it’s
even just awful for me to speak about him and remember him.[154]

Makhmud M. and his
family

Makhmud M., 47, similarly stated that he had been deceived
by an intermediary about the conditions in which he would be working in Kazakhstan, where he and his family ended up being forced to perform additional farming
work for the landowner, without pay. In an interview with Human Rights Watch,
Makhmud M., said that in February 2009 he went to the Nookat central market
where he met an intermediary who referred to himself as a “taxi
driver.” “The taxi driver said he would take me to a very good
person for work on tobacco,” Makhumud M. told Human Rights Watch.
“He promised good conditions. Like all taxi drivers he promised that we
would earn between 500,000-1,000,000 tenge (US$3,315-6,630). The taxi driver
said that the landowner would pay him for the cost of the trip, and that the
landowner would deduct this from our earnings. He didn’t say anything
about additional work that we would need to do for the landowner around his
house or in the fields.”[155]

Based on the promise of good work and conditions, Makhmud M.
traveled together with his wife and adult daughter to work in Malybai. But from
the very beginning, Makhmud M. found that the conditions promised by the
intermediary were not those provided by the landowner. “The taxi driver
said that it would be possible to have a written contract,” said Makhmud
M. “But there was no contract! Only an oral agreement. And this
oral agreement was not fulfilled!”[156]

During the work season Makhmud M. and his family worked up
to 14 hours a day and received only about seven days of rest, including weekend
days, for the entire season from mid-March to mid-November. When not farming
tobacco, Makhmud M. and his family were forced to do other work for the
employer. They felt they could not leave this situation because the landowner
had taken their passports at the beginning of the season. Makhmud M. told Human
Rights Watch:

During our free time [not farming tobacco] we worked for
the landowner on his other fields, growing onions and potatoes. If we
didn’t work for him on these fields, he would become angry with us. But
he didn’t yell at us. This work was without pay.

Our passport was with the employer the whole time. He took
them right away, as soon as he paid the taxi driver. … He gave us the
passports back only at the end of the tobacco season.

We could only walk around near the landowner’s house.
Without a passport, where could we go!? I wanted to go somewhere else, but my
passport was with the landowner. Where could we go?[157]

At the end of the tobacco season, Makhmud M. stated that he
believed that the landowner had received more than 800,000 tenge (US$5,300) for
the tobacco delivered to PMK. However, Makhmud M. and his family received
39,000 tenge (US$260) for eight months of work. The employer took
deductions for the intermediary [80,000 tenge (US$530)] and food [70,000 tenge
(US$460)]. “We worked for the landowner for nearly a year on the
fields,” Makhmud M. said. “This was very little, a miserly sum in
fact, for all this work. … I won’t go back to Kazakhstan next year.” In 2008, Makhmud M. and his family had earned 200,000 tenge
(US$1,616) producing tobacco on 1.3 hectares.[158]

Umut U. and her children

Umut U., 34, who in 2009 worked in Malybai together with her
four children, ages 10, 11, 13, and 14, told Human Rights Watch that an
intermediary promised to find the family work in tobacco and that the employer
would pay for half of the intermediary’s fees. However, at the end
of the season, the employer deducted the full cost of the intermediary (85,000
tenge $US ) from the final payment to Umut U.

In addition to farming tobacco, Umut U.’s employer
also required her and her children to perform various household tasks for free,
in addition to farming 2.2 hectares of tobacco. Because the employer had
confiscated both her passport and her children’s birth certificates, Umut U. felt she had no other possibility but to stay and work until the employer returned
them at the end of the season. She told Human Rights Watch,

We worked from morning to evening on 2.2 hectares of land.
We were expected to give 1.7 hectares worth of tobacco under the
“plan” with the landowner. He immediately took my passport and my
children’s birth certificates upon our arrival. He gave them back only
after the final payment. There was no violence from his side. He treated us
fine. … But during the time when we weren’t farming tobacco, we had
to help him with weeding and harvesting of onions. And we cleaned the yard
outside his house. This was all without pay. He got rather angry if we
didn’t help him.[159]

Schakhlo S. and her
family

Schakhlo S. cultivated tobacco in Malybai for three seasons
together with her husband and 14-year-old daughter. She told Human Rights Watch
that “Upon our arrival, the landowner paid the intermediary and took our
passports. He took all of our documents.” Schakhlo S. also described
additional work she and her family were required to perform for the employer
without pay:

We worked from morning to night on tobacco. We lived in the
landowner’s house. The conditions were decent, but there are no days off.
We almost never rested. When we aren’t working in tobacco, then we worked
for the landowner around the house. We cleaned up and took care of things
around the house. We had to do all this work for the employer for free.[160]

Almazbek A. and his
family

Almazbek A., who worked with his wife and six children on
tobacco farms in Kazakhstan for eight seasons, beginning in 2001, told Human
Rights Watch that employers consistently retained his and his family’s
passports. He said that he felt it impossible to leave the employer both
because of the absence of his passport as well as the debts that had already
been accumulated in the absence of regular wages. “[The landowners] force
you to work. There is no other choice. They have our identity documents, they
have paid for the transportation [from Kyrgyzstan] and for our food.”[161]

Almazbek A. described one instance when he left his
employer’s farm to do work at another house in order to earn some
additional money. “If we tried to do some work on the side [in Russian, levachit],
the landowner wouldn’t permit this. He said, ‘I’m the one who
paid for you.’ … The landowner himself would come find us in his
car … In 2007, my son and I had just a bit of plastering work left to do
[at another house]. The landowner came and grabbed me, and the other employer didn’t
have a chance to pay me at all. It was impossible to stand up to the
landowner.”[162]
His wife confirmed that they felt particularly trapped with this employer,
saying, “The landowner categorically refused to let us leave the
farm.”[163]

2.9 Excessively Long
Working Hours and Lack of Rest

In order to meet the expectations for tobacco production, on
which eight to nine months of income depended, migrant tobacco workers worked
long hours, from 5 a.m. to 10 p.m. or even later, particularly during the high
season, which runs from approximately July through September. In one case
documented by Human Rights Watch, an employer used physical force to coerce
workers, including a child, to work long hours. Migrant workers also received
few days off. Kazakhstani law limits working hours to 40 hours per week, with a
maximum of eight hours per day. Workers are guaranteed at least one day off per
week and paid annual vacation. Employees may work overtime, but only with their
written consent and must be paid time and a half.[164]

Sixty-year-old Akdana A. told Human Rights Watch that when
she, her husband, and five of their adult children worked on a tobacco farm in
2007, “We worked every day, from sunrise to sunset, so depending on the
season it would be nine hours in [September and October] and 16-18 hours in the
summer [from June to September]. We could have a few hours rest occasionally,
but we worked every day.”[165]
Bekbolot B., who in 2009 was working with his wife for the second year in a row
on a tobacco farm in Koram similarly stated, “In the morning we start at
5:00 a.m. and work until 9:00 or 10:00 p.m. We work like that from the end of
May through September. The work is really hard: it is always very hot, and the
tobacco is harmful in the heat.”[166] Ruslan R.
reported that he and the other migrant workers worked on the field from 5:00
a.m. to 7:00 p.m., or even as late as 10:00 p.m., and had no weekend days off.
When he and the other workers would take long rest breaks, the landowner would
get upset and insist that they go back to work.[167]

Other migrant workers also described long working hours, no
regular weekend days, and little rest, including for children. Nadira N.
described the long working hours and difficulty of the work while working with
her three children, ages 12, 15, and 20 in 2007 in Malybai:

The hardest work was done in July.
We got up at 5 a.m. and worked until 12 a.m. We had to harvest [the tobacco
leaves], string the tobacco leaves on a heavy needle and hang them up. …
Then we would begin harvesting the leaves. The landowner made us work like
that. We got only five hours at night to rest. There were no days off. For
lunch we only got a half hour. We were constantly in the fields. If the
landowner himself couldn’t be there, he would send someone over to keep
an eye on us.[168]

The landowner used physical force to coerce the workers,
including Nadira N.’s children. “When someone wasn’t doing
their work, was being lazy, then the landowner would beat them. The landowner
beat my children, [saying,] ‘You can lie around at home if you want, but
this is not Kyrgyzstan. You came here to work only.’[169]

Sabir S. and his wife and two children, ages 13 and 15, whom
Human Rights Watch interviewed in Malybai in 2009, would “work from 7:00
a.m. to 7:00 p.m. or 8:00 p.m. Sometimes we will come to the field at 4
a.m.” For a whole season [of nine months] the family received about three
weeks’ worth of days off including weekend days.[170]
By contrast, a person working a 40-hour work week for nine months, or 36 weeks,
would get at a minimum of 72 weekend days (or approximately 10 weeks) off.
Similarly Sharapat Sh., who worked in Malybai with her daughter, 15, and son,
18, said that her family worked 11 to 13 hours a day, and that for the nine
months that they were in Kazakhstan (March 12 to December 5, 2009), they took a
total of no more than 14 days off, including weekends.[171]

2.10 Exposure to and Inadequate
Information about Pesticides and Fertilizers

Human Rights Watch was able to ask two-thirds of the migrant
workers interviewed questions regarding pesticide and fertilizer use.[172]
While the majority reported using only fertilizers, six heads of families
reported that their families used pesticides as well. Migrant workers who were
specifically asked by Human Rights Watch about pesticides did not know of any
health risks associated with the application of pesticides or fertilizers, or of
health risks associated with harvesting and handling plants that had been
treated with pesticides.

In correspondence and meetings with Human Rights Watch,
Philip Morris International and Philip Morris Kazakhstan stated that they
provide to farmers and workers safe-handling instructions and information about
the risks associated with pesticides and fertilizers and conduct regular
trainings regarding safe-handling of pesticides and fertilizers. They also
stated that Philip Morris Kazakhstan agronomists supervise all pesticide
applications and provide protective equipment to workers performing pesticide
application.[173]
PMK provided to Human Rights Watch copies of its standard instructions for
safe-handling of pesticides and fertilizers.

Nonetheless, migrant workers interviewed by Human Rights
Watch were not getting the information they need to fully protect themselves
from harmful effects of pesticides and fertilizers. The standard PMK
safe-handling instructions for pesticide and fertilizer use were not consistent
with the first aid, protective equipment, and restricted entry requirements
provided on the label of Decis, the primary insecticide used on tobacco fields
producing tobacco for Philip Morris Kazakhstan in 2009. The standard PMK
safe-handling materials were only in Russian, a language which most migrant
workers from Kyrgyzstan do not speak. Of the migrant workers whom Human Rights
Watch asked specifically about written pesticide and fertilizer safe-handling
instructions, only one migrant worker had received any kind of written
materials regarding pesticide and fertilizer use. None had attended any
trainings by Philip Morris Kazakhstan agronomists or landowners.

In addition, for safe-handling of pesticides and
fertilizers, one of the key instructions provided both in Philip Morris
Kazakhstan’s own materials and on pesticide labeling is for workers to
wash with soap and water following application. However, as indicated below,
migrant workers, particularly those living in make-shift housing on the edge of
tobacco fields, may not have access to bathing facilities that would allow
proper washing after they handle these substances.

PMI’s response to these concerns and the measures it
intends to take are described below, in chapter 3.

Pesticides

According to PMI, in 2009, 86 out of 519 farms producing
tobacco for PMK applied pesticides. During the year, PMK distributed 50.7
liters of Decis pesticide and 4.4 liters of Confidor pesticide.[174]
Decis is an insecticide used on a variety of crops, including vegetables,
fruits, cotton, and others.[175]
Under United States law, Decis is classified as a Restricted Use Pesticide
(RUP), indicating that its toxicity exceeds specific hazard
criteria and requires additional regulation in an effort to limit
“unreasonable adverse effects” of its use.[176]
The RUP designation restricts a product to use by a certified pesticide
applicator or under the direct supervision of such applicator.[177]

The Decis label warns of “acute toxicity,”
meaning it is capable of causing adverse effects within a short time from one
or multiple exposures, and lists Decis’ hazards to humans as:

May be fatal if swallowed.
Corrosive. Causes irreversible eye damage and skin burns. Do not get in eyes,
on skin, or on clothing. Harmful if absorbed through the skin or
inhaled…Wear protective clothing, gloves, eyewear… Prolonged or
frequently repeated skin contact may cause allergic reactions in some individuals.[178]

The label instructs workers handling Decis to “wash
thoroughly with soap and water after handling and before eating, drinking,
chewing gum, or using tobacco.”[179] Workers may only
enter treated areas after 12 hours. Workers coming into contact with treated plants
should also wear protective clothing, including chemical-resistant gloves and
shoes, coveralls, and protective eyewear.[180]

Written instructions which Philip Morris Kazakhstan provided
to landowners and workers in 2009 do not reflect the toxicity risk that
resulted in Decis’ RUP classification and do not provide sufficient
warning regarding the health hazards associated with Decis. A one-page PMK
safe-handling instruction sheet provided to Human Rights Watch in November 2009
states: “Pesticides … categorized as low-risk, not presenting
serious threats to human health during application, are used for fighting pests
and diseases affecting tobacco.”[181] (See Appendix B)

The first aid instructions on the PMK document were also not
entirely consistent with the Decis label; the PMK document instructs that if
the chemical is swallowed, the affected worker should “drink several
glasses of warm water” and should induce vomiting. The Decis label first
aid instructions state that if the material is swallowed: “Do not induce
vomiting unless told to do so by a poison control center or doctor,” and
“Do not give liquid to the person.”[182]
The PMK safe-handling document provided to Human Rights Watch states
“Never work with pesticides barefoot or in open sandals; it is necessary
to work in boots or closed shoes” and “it is necessary to protect
hands with gloves … without holes.” The Decis label specifies that
gloves and footwear must be chemical-resistant and that workers should wear
coveralls to protect their clothing.[183] According to PMI,
PMK provides farmers and workers with gloves, masks, and rubber boots to be
used during application of pesticides. This protective equipment is also then
removed from the farms following the application. As noted above, PMI has
indicated that protective suits would be provided in the future.[184]

With regard to reentering an area treated by pesticides, the
PMK safe-handling document states: “Do not enter an area that has been
recently treated [with pesticides],” but does not specify a time interval.
The Decis label indicates a restricted entry interval of 12 hours following
application. The Decis label also indicates that workers entering an area
recently treated by Decis should wear protective clothing, including coveralls
and chemical-resistant gloves and footwear.[185]

Confidor is also an agricultural insecticide used by Philip
Morris Kazakhstan in 2009. The active chemical ingredient of Confidor,
Imidacloprid, is considered by the United States Environmental Protection
Agency to be a general use pesticide. Imidaclopird is a neonicotinoid, which
are among the most widely used insecticides worldwide. According
to a Material Safety Data Sheet for Confidor, the insecticide may be harmful if
inhaled or swallowed and may irritate eyes and skin and cause allergies, in the
event of repeated exposure.[186]
Workers are instructed to wear elbow-length plastic gloves, a disposable mask,
goggles, and coveralls, and to “wash gloves, goggles and contaminated
clothing” after each day’s application.[187]

According to a Philip Morris International letter dated
January 14, 2010, no pesticides are stored “on site,” on farms in
Kazakhstan. However, during its research in Kazakhstan in 2009, Human Rights
Watch found one case in which pesticides and equipment used for pesticide
application were stored on a farm employing migrant workers. Philip Morris
International stated that these materials were not those which PMK had provided
to the landowners with whom they contract.[188] Human Rights
Watch did not find pesticides or pesticide application equipment being stored
on any other tobacco farms which it visited.

In June 2009, Akbar A., from Uzgen, Kyrgyzstan, showed Human Rights Watch a used pesticide packet with a label in Chinese except for the
words “Imidaclopird 10%.” The migrant workers also showed Human
Rights Watch a backpack storage tank and sprayer which they stated was used for
pesticide application. The equipment was stored against a make-shift structure which
a family of migrant workers used for sleeping, in a location where the family
regularly walked. The fertilizers were stored in the family’s living
areas, where they ate and prepared food. Akbar A. told Human Rights Watch that
he applies pesticides directly to the tobacco himself with one of his adult
sons, without any assistance from the farmer or a PMK agronomist. “We
have a tank that is worn like a backpack that has a hose for application. I
don’t know the composition of the chemicals, but I know that it helps the
plants.” Although Akbar A. has boots that he wears during application of
the pesticides, he stated that he uses no other protective clothing. “We
don’t have any special protective clothing. No one gave them to us. No
one offered them,” he said.[189]

Bazarkan B., who was living in Lavar in 2009 with his wife
and six children, all of whom cultivate tobacco, described a similar method of
pesticide application and a lack of knowledge about the pesticides themselves.
He told Human Rights Watch, “For pesticides, we have to apply to the
selkhozkhimia [the local agricultural cooperative], and we get pesticides. They
are applied by hand. I don’t know the name but it comes in jars that look
like yogurt containers. We use a backpack with a hand-held sprayer. My oldest
son [an adult] and I apply it.”[190] Bazarkan B.
didn’t know the composition of the pesticides and was dismissive of the
potential risks. He said, “We’re used to working in tobacco.
Nothing [bad] happens to us.”[191]

Akdana A. and her husband Iskender I. worked on a tobacco
farm together with their adult children in the village Achusai in 2007. They
told Human Rights Watch that they used pesticides during tobacco cultivation,
but did not use protective clothing or have substantive information about any
potential risks. “We used four types of pesticides, but I think nothing
too harmful,” Iskender I. said. Akdana A. added, “We applied them
ourselves, one at a time. … They didn’t give us any protective
clothing.”[192]

Bekbolot B., who worked in Koram in 2008 and 2009, told
Human Rights Watch that he believed he was applying a pesticide, although he
was uncertain. He told Human Rights Watch: “Sometimes they give us these
packets. We dissolve a powder in water. If there are some kinds of insects,
then this is a chemical for that. I don’t remember what it’s called.
We do this without any instruments; we simply pour it on [the plants] from a
watering can.”[193]

Fertilizers

All migrant workers asked specifically by Human Rights Watch
about fertilizers and pesticides stated that they used fertilizers. Among
migrant workers who knew which kinds of fertilizers they were applying, the
chemical fertilizers commonly named were Azot, an ammonium nitrate fertilizer,
Ammophos, an ammonium phosphate fertilizer, and Selitra, a potassium nitrate
fertilizer. Migrant workers interviewed by Human Rights Watch typically applied
fertilizers to the tobacco plants by using watering cans or, more often,
two-liter plastic drink bottles with the tops cut off.[194]
In some cases they applied fertilizer pellets with their bare hands.[195]

Fertilizers are much less harmful to human health than
pesticides but are not altogether without risks. An ILO training guide for the
elimination of hazardous child labor in agriculture notes certain risks during
handling of chemical fertilizers, relevant for both children and adults. The
guide indicates:

Dry, chemical fertiliser, which is
hygroscopic and attracts moisture, can draw out moisture from the skin and
cause burns….Dry fertilizer can also cause irritation of the mouth, nose
and eyes. Liquid fertilisers also need careful handling as these are in a
highly concentrated form.[196]

In January 2010 PMI also pointed out to Human Rights Watch
that fertilizers pose fewer health risks. Their application is done without
supervision of PMK agronomists, although “as part of PMK’s regular
training on good agricultural practices, PMK agronomists review with farmers
and workers the general safe handling instructions that apply to fertilizers,
which are also usually printed on the fertilizer bags.” PMI also said
that materials distributed to farmers and workers contain safe handling
instructions for fertilizers.[197]

In two cases, Human Rights Watch saw bags of fertilizer
stored in the regular living areas, including eating areas, of make-shift
living structures which migrant workers had constructed at the edge of tobacco
fields.[198]
This practice is contrary to the instructions provided in the PMK instructions
for safe-handling of fertilizers and pesticides, which indicates that
fertilizers should be transported and stored separately from food. Fertilizer
bags seen by Human Rights Watch had safe-handling instructions written in
English and Russian, languages unlikely to be accessible to Kyrgyz migrants.

Migrant workers asked questions about safe-handling
instructions for fertilizers by Human Rights Watch stated that they had not
received information or instructions about fertilizers. Umut U., who told Human
Rights Watch that she and her four children used “Azot” and
“another kind of chemical that was clear in color,” which they
applied with bare hands or with plastic drink bottles to the base of the
tobacco plant. “I don’t know the names [of these chemicals],”
Umut U. told Human Rights Watch. “The landowner said that Philip Morris
[Kazakhstan] gave him the chemicals and that’s it. The Philip Morris [Kazakhstan] agronomist didn’t help us. Neither did the landowner. No one explained to
us how to use the chemicals. There was no protective clothing or shoes. …
There were no instructions.”[199]

Alym A., 42, told a Human Rights Watch about his experience
working with fertilizers:

I didn’t know, is
“Ammofos” a pesticide or fertilizer? We poured it under the tobacco
plants and at the roots we poured Azot. We poured Ammofos and Azot from plastic
Coca-Cola bottles. We didn’t use any other kinds of chemicals. The
landowner brought us these fertilizers in two bags… no one instructed us.
We ourselves know how to use them. We used our bare hands. There is no special
clothing or shoes.[200]

Gulumkan G., whom Human Rights Watch interviewed on a farm
in Koram in 2009, stated that she had received a brochure from the Philip
Morris Kazakhstan agronomist about fertilizers and pesticides and that workers
were required to sign that they had read the document. Even with this brochure,
she did not have a clear understanding of what she was using or what the health
risks might be.[201]
She said that they received a green granulate, which she called
“Nitromafus” and a white granulate called “Azanol.”
Gulumkan G. and her family do not use gloves when they scatter the granulates
in the tobacco fields in the spring. “Where would Kyrgyz get gloves from?
We rinse our hands twice afterwards and drink a cup of tea,” she said.
Gulumkan G. said that she knows the granulates are dangerous because of a
warning written on the package.[202]

2.11 Other Health Risks
in Tobacco Farming

One of the primary risks associated with tobacco farming is
green tobacco sickness (GTS), which is caused by the absorption of nicotine
through the skin from contact with tobacco leaves, especially wet tobacco
leaves.GTS is characterized largely by nausea, vomiting, headache,
muscle weakness, and dizziness. Children are especially vulnerable due to their
small body size in relation to the dose of nicotine they absorb.[203]
Public health research has found that “non-smoking tobacco harvesters
show similar cotinine and nicotine levels compared to active smokers in the
general population.”[204]
According to one study, “on a humid day, especially after a recent rain,
the average field worker may be exposed to as much as 600 [milliliters] of
dew,” which would contain roughly the nicotine of 36 average cigarettes.[205]
Other health risks for child and adult tobacco workers include respiratory
ailments, exposure to extreme temperatures, musculoskeletal disorders as a
result of carrying of excessive and/or awkward loads, repetitive and often
forceful actions, bending, stooping, and the adoption of awkward and
uncomfortable postures, and other injuries.[206]

Some workers interviewed by Human Rights Watch spoke of
health concerns, including lung ailments and skin ailments particularly during
the harvest of tobacco. Others did not practice basic worker safety, such
as wearing closed shoes. For example, Nadira N. who worked for three tobacco
seasons in Malybai, from 2004 to 2007, told Human Rights Watch that working in
tobacco “is very difficult. I am not going back to work anymore. Both me
and my children, we all got nauseous working with the tobacco.”[207]
Zhanyl Zh., 47, who was working in Malybai in 2009, told Human Rights Watch,
“In July and August when we are harvesting the tobacco, the weather is
very hot, and there is a strong vapor, a strong smell from the tobacco. This
hurts the upper respiratory system. The only thing we can do is cover our
mouths and nose with handkerchiefs.”[208] This may be
caused by exogenous allergic alveolitis (or hypersensitivity pneumonitis) which
is a type of lung disease frequently referred to as “tobacco
worker’s lung” and may be caused by inhalation of tobacco molds.[209]
Human Rights Watch could not verify the actual medical condition of Zhanyl Zh. or
any other interviewee. In June 2009, Human Rights Watch observed workers,
including child workers, wearing sandals or, in some cases, no shoes at all,
despite working with sharp hoes and in tobacco fields, including in fields possibly
treated with pesticides. (For other cases involving health concerns, see Child labor.)

As part of the Good Agricultural Practices program
(described in more detail below), PMI has developed materials about GTS for
distribution to leaf growers and suppliers which include information about GTS
symptoms, risk factors, preventive measures, and treatment,[210]
and PMI and PMK officials stated that they conduct GTS awareness-raising with
farmers in Kazakhstan, including through training sessions.[211]
However, none of the migrant workers whom Human Rights Watch specifically asked
about information or training regarding health risks in tobacco farming said
that they had received it from PMK, their employers, or anyone else.

Most workers interviewed by Human Rights Watch lacked any
kind of protective clothing to use during the tobacco harvest. Although some
had gloves, many workers, including children, did not. “We
don’t have special protective clothing [in Russian, spetzodezhda],”
stated Alym A. who worked in Karaturyk in 2009.[212]
Public health research has found that “protective equipment has been
shown to decrease the magnitude of GTS significantly.”[213]
The ILO has also noted that tobacco workers should minimize exposure during
harvesting or other tasks requiring prolonged contact with green tobacco by
delaying work until the leaves are dry or by wearing lightweight rain gear and
waterproof gloves when the leaves are wet. Precautions for working in dry
tobacco include wearing long trousers, long-sleeve shirts and possibly gloves.[214]

2.12 Lack of Potable Water

On all farms which Human Rights Watch visited there was no
potable water available for migrant workers or other workers on the tobacco
fields. Migrant workers who lived in tents and makeshift houses next to the tobacco
fields retrieved water for drinking, cooking, and bathing from nearby streams,
rivers, canals, and springs. Often, they also used this one water source to
irrigate the tobacco fields. This water may contain unknown amounts of
pesticides and fertilizers used in the fields. Drinking dirty or contaminated
water may expose workers to dangerous chemicals, organic wastes, and parasites.
Ready access to plentiful, clean drinking water is also crucial for migrant
tobacco workers, who work in full sun and high heat for many months of the
year, to prevent dehydration and heat-induced illness.

Workers who live in or near villages may have access to
public outdoor taps, a typical feature of rural villages in Kazakhstan, where
homes do not have running water. These workers may bring water with them to
work in the fields.

Human Rights Watch interviewed Aisha A. in June 2009 as she
carried a large empty container for collecting water. She said that her family,
including three children, usually gets water from a tap in the village where
they live, but because on that day the water was turned off, they were on their
way to a nearby river to get drinking water.[215] Bazarkan B., who
had been working with his wife and six children in Lavar, from 2006-2009, told
Human Rights Watch, “We get water from the irrigation channels running
nearby. We use this water to irrigate the fields. We also drink and wash from
the same water,” he said.[216]
Bekbolot B. said that he and his wife get their water from an artisanal spring,
near the field.[217]

2.13 Poor Sanitary Conditions

Hand washing and bathing facilities are important both for
basic hygiene of workers and their families as well as for mitigating the
effects of exposure to pesticides and nicotine in tobacco leaves.[218]
Materials produced by PMI regarding GTS indicate three steps to preventing the
illness, including for workers to wear protective clothing to reduce body
contact with the plant and for workers to their wash hands and bodies with warm
water and soap after working with green tobacco.[219]

Workers, particularly those who live next to the tobacco
fields, may lack proper hygiene facilities. In such cases hand washing is done
in streams or using bottled water brought from a nearby village. For those who
live near the tobacco fields, bathing is also done in streams or irrigation
canals. The outhouses migrant workers use, which they often have built
themselves, are located at the edges of the tobacco fields, frequently near
their living structures and near their sole water source. In 2009, Human Rights
Watch researchers saw outhouses constructed within a few feet of canals used
for irrigation and drinking water on three separate farms.

In one example, Akdana A., 60, who worked in Achisai in 2007
and lived at the edge of the tobacco field, told Human Rights Watch that when
she or her husband needed to wash, they would go to a makeshift shack on the
edge of the tobacco field that served as a bathing area for workers on those
fields.[220]

Migrant workers who lived in houses or other structures near
the landowner’s home or the village were often able to access banyas
or saunas. Ruslan R. and Gulnara G., who both worked in Malybai in 2009 for
different employers, told Human Rights Watch that the landowners allowed the
workers to use a banya for bathing.[221] Public banyas
are also available in some villages.

2.14 Substandard
Employer-provided Living Conditions

All migrant workers interviewed by Human Rights Watch stated
that their employers provided free accommodation. In the absence of regular wages,
this was the most viable option for migrant workers. While living in
employer-provided accommodation may be an advantage to many migrant workers, it
was also another aspect of the workers’ dependence on the landowner.

The quality of accommodation varied. Many migrant workers
interviewed by Human Rights Watch, including whole families with small
children, live in makeshift housing of their own construction on the edge of
the tobacco fields for at least five of the peak months of the tobacco farming season.
Living near the tobacco fields maximizes the amount of time that a worker
spends at work and contributes to workers’ long hours. These makeshift
structures have little protection from the elements, and have no electricity,
running water, or heat. This type of accommodation has been described by the
ILO as substandard, and contributing to overall poor health of workers. The ILO
has noted that “there is a close link between housing, worker well-being
and productivity.”[222]

Other migrant workers interviewed by Human Rights Watch
lived in permanent structures, such as a room in the landowner’s house or
in the landowner’s barn or shed. Even in some more substantial
structures, however, workers may have had poor or limited access to proper
sanitary conditions and may not have had heat or electricity.

On five farms, Human Rights Watch saw structures constructed
with branches for frames, and covered with plastic tarps, burlap tarps,
fiberglass panels (of the type used for greenhouses), large cardboard boxes, and
similar materials. Outhouses were constructed in a similar manner. Some migrant
workers had constructed more substantial structures using mud, but these were
rarer. Migrant workers use thin mattresses, blankets, and tarps to sleep on.
Some have constructed wooden tables and chairs, but most migrant workers sat on
the ground or on bedding materials.

Migrant workers may also live in one room of the
landowner’s home, or in a barn, shed or other building owned by the
landowner. Human Rights Watch visited one such structure, which apparently used
to serve as a barn. The structure was divided into several rooms, each with its
own window and small door. Some windows were broken. The structure appeared to
have electricity. In each room, there were a few mattresses on the floor and
some limited cooking instruments, such as hotplates and electric teapots. The
structure did not appear to be heated in any way.

Other workers reported having appropriate housing provided
by their employers. While working in Malybai in 2009, Gulnara G. told Human
Rights Watch that she lived in a small house provided by the landowner with her
three daughters and a two-year-old grandchild. The house consists of one room
of about 20 square meters and had two beds, numerous mattresses, and a gas
stove.[223]
Ruslan R. stated that he lived with three other migrant workers in a three-room
house with a wood stove for heating.[224] Some migrant
workers who live near the tobacco fields for five to six of the warmer months
may live in a more regular dwelling, such as the landowner’s home, barn,
or other building for a few months at the beginning and end of the season, when
the temperatures are too cold to live outdoors.

Part 3: Protection and Redress

3.1 Lack of Effective Government Oversight and
Complaint Mechanisms

Kazakhstan’s human rights obligations require the
government to take positive measures to protect migrant workers from abuse and
exploitation. Effective monitoring of employers and making available accessible
mechanisms for timely redress for abuses are crucial dimensions of rights
protection. But the Kazakhstani government has not put in place effective
monitoring or redress mechanisms that would end abuse and exploitation in
tobacco farming.

Government officials consistently stated to Human Rights
Watch that migrant workers did not appeal to official agencies in case of abuse.
However, Human Rights Watch research in 2009 indicates that this is because avenues
of redress are not accessible for migrant workers in the tobacco sector, not a
lack of abuse. Even if migrant tobacco workers were to turn to government
agencies, officials consistently told Human Rights Watch that the authorities
would typically deport any migrant found to be working unofficially or with
irregular migration status, and would not seek to investigate any complaints of
abuse made by that worker.

Monitoring by the Labor Inspectorate and Ministry
of Interior

A labor inspectorate exists under the Ministry of Labor and
Social Protection of the Population and is responsible for monitoring
employers’ adherence to labor laws, including laws prohibiting child
labor, and observing and protecting the rights and freedoms of workers. This
includes reviewing applications and complaints made by workers and employers.[225]
Both the labor inspectorate and the migration department of the Ministry of
Interior are responsible for monitoring employers’ compliance with laws
regarding the employment of foreign workers.

According to statistical information provided by the
Ministry of Labor and Social Protection, the labor inspectorates conducted
22,116 inspections in 2009 and identified over 100,000 violations of labor
laws. The ministry did not specify how many of these inspections and violations
took place in agriculture, although Human Rights Watch requested it to do so.
The only information regarding the labor inspectorate’s activities in
2009 specific to agriculture indicated that 5.9 percent of workers who suffered
accidents were employed in agriculture.[226]

In interviews with Human Rights Watch, migrant workers,
local officials and landowners in the Enbekshikazakh district tobacco growing
region stated that they had yet to encounter labor inspectors conducting
inspections in the tobacco fields. According to one tobacco farmer in Malybai
who regularly hires migrant workers, “There are never any
inspections.”[227]
An akim in one village in the Enbekshikazakh district told Human Rights Watch
that for nearly a year there had been no official inspections, “There
have not been any labor inspections or investigations by the prosecutor’s
office in this village since September 2008,” he said.[228]
One migrant worker told Human Rights Watch, “In ten years of working
here, I have never seen the labor inspectorate.”[229]

Under Kazakhstani law, labor inspectors are required to
inspect employers’ compliance with laws regulating the use of child
labor, including the worst forms of child labor. The Committee of Experts of
the ILO (CEACR), the legal body responsible for the examination of compliance
with ILO conventions and recommendations, issued a report in 2009 concerning Kazakhstan’s implementation of the Worst Forms of Child Labor convention, including
the requirement to establish mechanisms to monitor the implementation of the
convention. The report found that “state labour inspectors periodically
submit information on the use of child labour in Kazakhstan to the Ministry of
Labor and Social Protection of the Population,” yet noted that there is
“a lack of child labour monitoring systems and a need to consolidate
efforts of state institutes, non-governmental organizations, social partners,
and international organizations in the area of detecting children engaged in
the worst forms of child labor.” CEACR recommended the establishment of
monitoring mechanisms to monitor the worst forms of child labor other than the
labor inspectorate.[230]

Government complaint mechanisms

In Kazakhstan, a number of a number of
official agencies and mechanisms could potentially provide redress for abuses
against migrant workers. Article 314 of the Labor Code of Kazakhstan
guarantees the right of workers “to appeal to the state labor authority
and its territorial subdivisions to inspect the working conditions and labor
safety at his place of work.[231]
As noted above, however, for a worker to be considered an employee, he or she
must have a written employment contract. Individuals may also appeal to the
prosecutor’s office, which is charged with ensuring respect for the laws
of Kazakhstan, to the police or migration police, or directly to the courts for
certain issues.[232]
Experts indicated that there is limited judicial practice, however, on many of
the legal violations relevant to migrant workers, including forced labor, and
non-payment of wages in the absence of a written contract or other labor issues.[233]
Individuals may also appeal to the human rights ombudsman in the event they
believe that their rights have been violated by a government official, with
certain exceptions, or a commercial organization.[234]

Government officials, migration experts, and migrant workers
interviewed by Human Rights Watch for this report consistently stated that
migrant workers rarely appeal to government agencies in the event of a
violation of their rights. Vice Minister of Labor and Social Protection of Kazakhstan Birzhan Nurymbetov stated, “We receive no complaints from migrant workers.
We do receive complaints from citizens of Kazakhstan against migrant workers
who are working unofficially and against employers who have hired migrant
workers without official permission.”[235]

The Head of the Migration Police Department at the Ministry
of Internal Affairs, Serik Sainov, echoed this, stating that his department
does not receive complaints from migrant workers, but that Kazakhstani
employees complain to the police when their employer or companies have hired
migrant workers unofficially.[236]
Vyacheslav Kalyuzhnii, head of the National Human Rights Center of the
Ombudsman’s Office, stated that the office received only between 10 and 20
complaints from migrant workers in 2008 and even fewer in 2009 and that very
few complaints come from citizens of Kyrgyzstan and Uzbekistan. Kalyuzhnii
believes that many workers are afraid to approach government agencies out of
fear of retribution by the government or their employers or both.[237]

These fears appear to be well-founded. State officials
uniformly stated that migrant workers found to be working unofficially or to
have irregular migration status, due to expiration of their residency
registration, would be deported, irrespective of any allegations of abuse by
employers or state agents. Kalyuzhnii stated, “It is unfortunate, but
migrants who perform work illegally, basically have no rights in Kazakhstan. No one will investigate violations against illegal [irregular] migrants.
Migrants don’t want to go to the police to report violations because they
fear that they will be deported. Illegal [irregular] migrants will be obliged
to pay a fine and administratively deported.”[238]
Vice Minister Nurymbetov also said, after several questions from Human Rights
Watch about how the government would respond to a complaint of abuse made by a
migrant worker, whose employment or residency was irregular, “We deport
violators of migration laws immediately. And we will issue a ban prohibiting
the employer from hiring migrant workers for one year.”[239]

No workers interviewed by Human Rights Watch in 2009 had
filed a complaint to any official body in Kazakhstan, nor had they considered
doing so. Migrant workers either did not know to whom to complain or believed
any attempt at redress would be futile. Jakhon J., who worked in Malybai for
most of the 2009 season, before leaving an abusive employer in the middle of
the season without receiving any pay, “There is nowhere to file a
complaint. No one ever files a complaint. And even if there is a place to
complain, what kind of result will there be?”[240]
“There’s no time to complain. Anyway, there’s nowhere to
complain to!” Bakir B., who also worked in Malybai in 2009 told Human
Rights Watch.[241]

3.2 Non-governmental Avenues for Redress

Non-governmental organizations

Kazakhstan has an established human rights community, and a
number of non-governmental organizations (NGOs) provide direct legal and other
services to individuals in need of assistance in defending their rights. The
majority of these larger organizations are in larger cities. Migrant workers
rarely approach these organizations because they are unaware of them, unable to
travel to the towns or cities where organizations are located, or are
unfamiliar with what services these organizations can provide.

The Kazakhstan International Bureau for Human Rights and
Rule of Law (KIBHR), the largest human rights organization in Kazakhstan assists migrants, including migrant workers, but, according to a lawyer at the
organization, few migrant workers approach them, despite the
organization’s efforts to reach out to migrant populations. KIBHR can
assist migrants in filing complaints with the courts or government agencies,
but as the lawyer explained, “People are afraid of interacting with
official government agencies. They also may not also have the time, since
judicial processes typically take a long time.”[242]
She added that in some cases migrant workers may be reluctant to turn to
organizations offering legal assistance because migrants feel it is easier and
faster for them to solve their problems informally, such as by offering a
bribe.[243]

The lawyer was pessimistic about the concrete assistance
that organizations like KIBHR can provide to most migrant workers, including
those in tobacco farming, who seek redress for violations of labor law or other
violations. Firstly, for migrant workers without an employment contract, the
labor inspectorate and judiciary are very unlikely to recognize that labor
relations existed. Secondly, only advocates, or members of the Bar, may
represent plaintiffs in administrative cases; however, under Kazakhstani law,
advocates may not work in social organizations.[244]

According to the Eurasia Foundation of Central Asia (EFCA),
there are approximately 30 small NGOs working in the Enbekshikazakh district of
Almaty province.[245]
These organizations each focus on a specific theme, such as protection of the
environment; promotion of tourism; support for the elderly, persons with
disabilities, women, or veterans; as well as programs for children and other
topics. Only one organization, Kazygurt, in Chilik, which is run by a local
school director, has done any work related to migrant workers. Kazygurt
prioritizes ecological and economic education, with a focus on low-income families.
Kazygurt’s director, Ardak Kyrykbai, is also the head of the T. Kenzhebaieva
high school in Chilik. Kyrykbai told Human Rights Watch that she is also a
certified UN business trainer and she holds trainings for representatives of
small and medium business in Chilik. She also trains farmers and one of the
components of her trainings is to raise awareness of child labor. When Human
Rights Watch spoke to her in 2010, Kyrykbai said that her organization did not
have funds for specific projects to assist migrant workers, but she continues
to conduct the trainings on her own. In 2007, Kazygurt ran a summer camp for
migrant children sponsored by PMK via EFCA. The summer camps program is
described in more detail in the next section. According to Kyrykbai, 220
children, aged 9-14, 70 percent of whom were children of migrant workers,
attended the camp.[246]

Trade unions

The Almaty Union of Agro-industrial Workers includes
agricultural workers from throughout Almaty province. The head of the union,
Tastan Tokseitov, told Human Rights Watch that the union welcomes migrant
workers and that in 2008, approximately 140 migrant workers, employed primarily
in tobacco farming and, to a lesser degree, in vegetable farming, joined the
union. A migrant worker is required to submit a written request and show proof
of his residency registration in order to join the union. Although migrant
tobacco workers have faced problems with contracts and fair payments, according
to Tokseitov, the trade union has not submitted complaints to the
prosecutor’s office or the judiciary on behalf of migrant workers.[247]

The International Union of Food, Agricultural, Hotel,
Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF), together
with its affiliates, the Almaty Union of Agro-Industrial Workers (AIWU) and the
Agricultural Workers Union of Kyrgyzstan, have been working to support and
protect migrant workers from Kyrgyzstan working in Almaty province since 2007.[248]
This effort emerged in response to reports of abuse against migrant agricultural
workers in Kazakhstan, including child labor and other abuses.[249]

As part of this initiative, a union organizer has worked in
the Almaty province specifically to defend the labor rights of migrant workers
and to organize migrant workers employed in tobacco farming, vegetable farming,
and viniculture. The union organizer has assisted migrant workers by
accompanying the migrant worker to the employer and insisting on a written
contract. In 2008, there were 1,647 migrant agricultural workers with contracts
in Almaty province.[250]
The union organizer also has helped migrant workers join the AIWU Almaty.[251]

In a June 2009 interview with Human Rights Watch, the union
organizer also stated that he was concerned about employers’ confiscating
migrant workers’ passports, and would take efforts to ensure migrant
workers kept identity documents in their possession. He has approached
employers himself directly to discuss this concern. He confirmed that workers
have had complaints about deception in the final payment, including in 2008. In
most cases, the representative seeks to settle these disputes directly with the
employer, at times with the assistance of district or regional AIWU Almaty
representatives.[252]

3.3 The Government of Kyrgyzstan

Labor-sending countries also bear
responsibility to minimize the risk of abuse to workers who seek employment
abroad. There are a range of measures governments can and, at times, do take to
help ensure protection of migrant workers from their countries. These include
providing effective consular services specific to the needs of migrant workers
in countries of employment; implementing anti-trafficking legislation and
policies; regulating employment agencies and individual employment recruiters;
receiving and investigating complaints of abuse against migrant workers' rights
by all parties, and when it is within their jurisdiction to pursue remedies
against those responsible for abuse. Home country governments should also cooperate
with international organizations such as the International Organization for
Migration (IOM) and the International Labour Organization (ILO) as well as
domestic NGOs in the formulation and implementation of protective measures.

The government of Kyrgyzstan’s State Committee on
Migration and Employment has a representative based in the consulate of Kyrgyzstan in Almaty. Although the then-head of the State Committee, AIgul Ryskulova
acknowledged some of the abuses experienced by migrant workers from Kyrgyzstan
in Kazakhstan, the government in Bishkek has not taken an active role in
protecting and assisting migrant tobacco workers from Kyrgyzstan. Most migrant
workers interviewed by Human Rights Watch had not had any contact with the
consulate and did not regard the consulate as a meaningful option for seeking assistance.

Abdykapar Tuyaliev, the representative of Kyrgyzstan’s State Committee on Migration and Employment at the consulate of Kyrgyzstan in Almaty told Human Rights Watch that the consulate receives complaints by
telephone and during visiting hours twice a week. Tuyaliev also stated that he
travels to the villages where migrant workers are employed in tobacco farming.
He stated that previously there were many complaints regarding non-payment of
wages and that in 2009 there were problems for migrant workers in securing
contracts. He planned to travel to villages to assist migrants with securing
contracts.[253]

Tuyaliev also stated that he regularly encounters child
labor in the tobacco fields and tries to encourage parents to send children
home. He also acknowledged that children are likely to study in school only if
their parents live in Kazakhstan for several years consecutively, but was
unaware of any efforts by the government of Kyrgyzstan to promote access for
migrant workers’ children to Kazakhstan schools.[254]

With respect to Kazakhstan’s moratorium on permits for
workers in agriculture for 2009, Tuyaliev stated that Kyrgyzstan had not advocated for a revision of this policy, because it “was not going to
become involved in the internal politics of Kazakhstan.”[255]

Migrant workers interviewed by Human Rights Watch had had a
variety of experiences with the consulate. Some had encountered a
representative from the consulate who visited the tobacco fields, though most
had not. Nor had they considered traveling to Almaty to visit the consulate, in
some cases because their employers had confiscated their passports making them
unable to leave their workplaces. Migrant workers also expressed little trust
in the consulate or little belief that the effort of making a complaint would
produce a result. One expert on labor migration in Kazakhstan confirmed this, stating that sending countries are not sufficiently supportive to migrant
workers in Kazakhstan whose rights have been abused, cutting off an important
potential avenue of redress.[256]

One family of migrant workers who worked in Malybai in 2007
told Human Rights Watch that they had spoken with a consular representative
during his visit to the tobacco fields and told him that they were having
difficulties with their employer. They described the consular official’s
efforts: “He went, looked at things, spoke with the landowner and
with us, but there were no results.”[257] Another worker
confirmed that the consular representatives “came to our fields in
2004-2007,” but that no one had visited in the last two years.[258]
A few workers said that they had never seen consular representatives, including
Bekbolot B., who was working in Koram in 2008 and 2009. “No one from the
consulate or embassy ever comes here,” he told Human Rights Watch.[259]
Migrant workers engaged in vegetable farming also told Human Rights Watch that
they had not encountered any consular representatives.[260]

3.4 The Role of Philip Morris International and
Philip Morris Kazakhstan

On its website, Philip Morris International expresses its aim
“to be a responsible corporate citizen and to conduct [its] business with
the highest degree of integrity.”[261] PMI states a
desire to ensure “the fair treatment of our employees, suppliers, and
customers” and to eliminate child labor.[262]
Its commitments range from “supporting communities around the world, to
addressing issues impacting employees and leading responsible environmental and
agricultural practices.”[263]

The Good Agricultural Practices Policy

PMI maintains a Good Agriculture Practices (GAP) policy that
should be implemented by all those who supply tobacco to PMI worldwide.[264]
PMI describes the program as “one component of PMI’s commitment to
social responsibility.”[265]
The GAP relates to various aspects of tobacco farming and is designed to
protect the environment as well as to “promote economic viability for the
farmer and a safe working environment for those directly involved in the
production of the crop.”[266]
It has six key components: Mission and Values; Variety Management and
Integrity; Crop Management; Integrated Pest Management (IPM); Sustainability;
and Product Integrity. The GAP also states that PMI has a company policy
regarding child and forced labor and communicates this policy to its tobacco
leaf suppliers.[267]

The “Mission and Values” component of GAP sets
out “measurables” on which PMI and its subsidiaries will assess tobacco
supplier performance. Among the measurables relevant to concerns identified in
this report are indicators concerning child labor. These include requirements
to “prohibit unlawful child labor at the farm level;” to “implement
a comprehensive plan to address child labor issues in tobacco
production;” to conduct “random unannounced visits;” and to “encourage/support
school attendance.” PMI and PMK’s response to
child labor is addressed in detail in chapter 4.

Concerning worker safety, the “Mission and
Values” section also includes the requirement to “establish an
effective training program for CPA [Crop Protection Agents] handling,
application, and storage.” In the “Integrated Pest Management”
measurables on pesticide use expect suppliers to “promote the use of
personal protective equipment.”[268] However, the GAP does
not address other rights, including worker rights issues such as written,
enforceable contracts, wages paid in accordance with local laws, limits on
working hours, etc.

In Kazakhstan, monitoring of compliance with GAP policies is
conducted by PMK agronomists, who are expected to regularly visit the tobacco
farms. Agronomists are agricultural specialists who are typically former
tobacco farmers themselves and live in the primary tobacco-growing communities.
In 2009, there were four PMK agronomists responsible for monitoring 519 farms
in the Enbekshikazakh district.

According to senior PMI and PMK executives, PMK agronomists
visit each tobacco farm two to three times per month for routine inspections
and also conduct unannounced audits.[270] These audits
focus on compliance with agricultural practices and child labor. In a November
10, 2010 letter, PMI stated that PMK agronomists had conducted 171 unannounced
audits in 2009. A March 2010 letter from PMI indicated that PMK’s
agronomists had conducted 209 unannounced audits, during the 2009 growing
season, 146 of which took place on farms employing migrant workers.[271]

Training is another important component of the GAP. In
November 2009 PMI told Human Rights Watch that PMK conducted over 500 training
sessions for farmers and their workers in 2009, which covered, among other
matters, child labor prevention.[272]
PMI and PMK executives also said that PMK agronomists conduct four separate
training sessions per year with all farmers contracting with PMK. In 2009, PMK
had contracts with farmers on 519 farms. Five to seven farmers participate at
each session, and the training is dedicated to a certain areas of farming
relevant to that season, such as pesticides, protection of the crop, and
handling of seedlings. The company reports prevention of child labor is always
included as a topic. Farmers are required to attend and confirm their
attendance by signature. PMI and PMK executives also stated that “workers
also usually attend, but they don’t sign in.”[273]

Despite the existence of the GAP policy and PMI and
PMK’s steps to implement it in Kazakhstan, Human Rights Watch has reached
the conclusion that these measures were not sufficient to prevent and remedy a
range of abuses and exploitation, including child labor and forced labor
Kazakhstan, as this report documents. For example, taking the “protect, respect,
remedy” framework proposed by the U.N. Special Representative on Business
and Human Rights, it is Human Rights Watch’s assessment that Philip
Morris did not have adequate procedures in place to assess its human rights
risks, examine the scope of its problems, and effectively mitigate those human
rights problems. Nor did it have a mechanism to provide remedy to those
children and adults whose rights were violated.

As described in more detail in the recommendations section
of this report, PMI’s GAP policies should be revised to adequately address
a range of rights concerns relevant for tobacco workers, with attention given
to the particular vulnerabilities of migrant workers. PMI should ensure that
the commitments it has made to engage third-party monitoring and to revise and
expand internal monitoring procedures result in effective implementation of the
GAP and other relevant policies.

PMI and PMK response to Human Rights Watch

During the research for this report Human Rights Watch and
PMI maintained a dialogue through letters and meetings. In response to Human
Rights Watch’s concerns raised in an initial October 13, 2009 letter to PMI,
PMI and PMK undertook a three-day investigation in the Enbekshikazakh region. Throughout
its dialogue with Human Rights Watch Philip Morris International said that the
investigation had not found evidence of some of the worst abuses documented by
Human Rights Watch, such as forced labor or debt bondage. Nevertheless, PMI has
stated that the company “will not tolerate conduct such as that reported
by Human Rights Watch from our suppliers, vendors, or contractors,”[274]
as described in more detail below.

According to PMI, during the investigation, carried out in
November 2009, PMI and PMK representatives visited “over 30 farms that
employ or have employed migrant workers and conducting interviews with members
of the PMK agronomy team, representatives of schools, local authorities, as
well as NGOs we have been working with in the past.”[275] The
investigation found no “evidence of debt bondage structures.” PMI
stated that any advanced payments or expenses made by landowners on behalf of
workers were not sufficiently large to put workers into debt equal or greater
to the final payment.[276]
Nor did PMI and PMK “find any cases where a worker claimed that the
farmer had not honored his or her commitments made verbally.”[277]PMI told Human Rights Watch that it believes that “work [performed
by workers for landowners] on other crops is compensated separately from and on
top of the tobacco-related income.”[278]PMI also told Human Rights Watch
that in the course of its November 2009 investigation, it found “a
widespread acceptance of farmers holding passports “to protect against
loss or theft, to protect [migrant workers] against alleged harassment from the
police, and for registration purposes.” It also found evidence of
passports being retained “as a security for advance payments” made
by the landowner to workers.[279]

Commitments from PMI

PMI officials have told Human Rights Watch that PMI is
“opposed to and committed to preventing child labor, forced labor, and
other abusive and illegal conduct towards migrant workers in tobacco in
Kazakhstan” and that the company is “taking steps to address the
widest range of conduct.”[280]
PMI has made several important commitments which if fully implemented and
monitored would significantly improve the rights situation of migrant tobacco
workers.

Contractual obligations

PMI and PMK have stated that they will strengthen future
contracts concluded with landowners, for example by requiring that landowners
“comply with the labor laws of Kazakhstan, including a prohibition of
child labor and forced labor, requirements regarding safe and hygienic working
conditions, and written employment contracts with all members of the migrant
worker family.”[281]
The contractual obligations for landowners also include a prohibition on the
withholding of “passports or other official documents as a deposit or
guarantee of fulfillment of the Employee’s obligations.” Documents
can be held by the landowner only with the agreement of the worker and
exclusively for the purposes of safekeeping. PMI and PMK have also stated that
future PMK contracts with landowners would include a requirement that all
fertilizers and pesticides be used in compliance with all safety requirements
while using and storing them, and that the landowner ensures workers use the
individual protective gear provided to them, including for the application of
pesticides. [282]
Violation of any of the terms of the contract will be grounds for termination
of the contract by PMK.[283]

PMK will also provide landowners a template written contract
to be concluded with each worker. According to PMI, the contract specifies that
the farmer ensures “appropriate labour conditions in accordance with the
legislation of Kazakhstan.” The contract establishes a combination
payment scheme, whereby workers will receive a monthly payment not less than
the minimum wage as well as a lump sum payment at the end of the season based
on the weight and grade of the tobacco leaves.[284]
These payments should be made in “a timely manner and in full.” PMI
also said that should landowners need to receive prepayments from PMK to
finance monthly wages, the contract between the landowner and PMK provides for
this.[285]
This is a significant step, given that the end-of-season lump sum payment
structure puts workers at risk of becoming trapped in abusive employment situations
and also contributes to the use of child labor.

The template contract will include a requirement for a
40-hour work week, with a provision indicating that extra work on certain days
could be offset by reduced work hours on other days, but that extra hours
worked would not be considered overtime. Workers would also be granted at least
24 days of paid annual leave.[286]
The contract also includes a provision for the employer to provide the necessary
individual protective gear to workers using pesticides.[287] In
addition to rubber boots, gloves, and masks, PMK will also make available
protective suits for a nominal fee and verify that the protective gear is worn
during the application of crop protection agents.[288]Given
the inherently hazardous nature of pesticide use Human Rights Watch has
recommended to PMI that PMI and PMK should provide all safety equipment at no
cost to the workers.

Contracts with landowners and landowners’ contracts
with workers will also include a requirement that landowners provide
“sufficient drinking and washing water on the work premises.”[289]
Both PMK’s contracts with landowners and landowners’ contracts with
employees will mandate that landowners provide employees with “minimum
standard living conditions, including dry and warm housing, sanitary facilities
and access to potable water near the housing, except for employees who have their
own accommodation near the place of work.”[290]

Pesticides and fertilizers

In January 2010 PMI stated that it would “refresh the
content of the safety instruction hand-outs and provide them in Russian, Kazakh
and Kyrgyz language[s].”[291]
With regard to the Decis and Confidor pesticides, in March 2010, PMI told Human
Rights Watch that they have “checked again the PMK pesticides handout
that was used last year against the safe handling instructions provided by the
supplier of Decis and Confidor and believe that they are substantially
consistent.”[292]

Training of agronomists

In January 2010 PMI and PMK indicated commitment to
expanding the training of agronomists to include topics such as forced labor,
passport retention, living conditions, and access to education for children.[293]
In March 2010 PMI indicated that PMI and PMK planned to review “the
question of whether it is reasonable to expect the agronomists to be
responsible both for monitoring agricultural issues (tobacco quality and yield)
and labor issues (child and forced labor, working and living conditions), with
the involvement of the Environment, Health and Safety (EHS) Department of
PMK.”[294]
PMI said that PMK “is considering increasing the percentage of total
farms audited in 2010 to 50 percent, which would … result in a complete
coverage of all farms employing migrant workers.”[295]

PMI is also working to improve internal monitoring and
adopting internal checks,[296]
including working with a third-party organization expert in monitoring labor
violations to verify landowners’ compliance with new policies.[297]
They also plan to continue outreach to the ILO, local NGOs and local government
officials.[298]

Part 4: Child Labor and Other Abuses against
Migrant Worker Children

Child labor in tobacco is a long standing concern in Kazakhstan. The International Labour Organization and others have identified child labor
among both migrant workers and Kazakhstani children in agriculture and other
sectors in Kazakhstan.[299]
Human Rights Watch interviews and farm visits confirmed the frequent use of
child labor.

As described in chapter 3, migrant tobacco workers in Kazakhstan generally travel together and work as families. Migrant workers who travel with
their children to Kazakhstan for employment on tobacco farms generally expect
their children to work with them through some or all stages of the tobacco
farming and curing process. Human Rights Watch identified children aged 10-17
working. Younger children often accompany their families but do not work.

The practice of a single end-of-season payment based on
volume of tobacco produced contributed to the pressure that parents feel to
include their children in the farm work. Parents interviewed by Human Rights
Watch in 2009 stated that they felt they must commit as much
effort and as many working hands as possible each day to tobacco farming in
hopes of producing the expected volume of tobacco and of receiving decent
earnings at the end of the season.

Tobacco cultivation is painstaking manual work and poses
significant health risks, including muscoskeletal disorders, exposure to high
heat and sun during the summer months, exposure to pesticides, and health risks
associated with the handling of tobacco plants, all of which are particularly
acute for children. Child migrant workers are exposed to the same lack of
adequate sanitary and hygiene conditions and substandard housing conditions as
adult migrant workers.

In only one case among the migrant workers Human Rights
Watch interviewed, did a family have school-age children enrolled in school. In
nearly all cases, migrant workers did not attempt to enroll their children in
local schools, since they expected the children to work with them. In the two
cases in which migrant workers interviewed by Human Rights Watch had attempted
to enroll their children in local schools, they were refused due to lack of
residency registration. The government confirmed to Human Rights Watch that
only migrants with permanent residence in Kazakhstan and in possession of a
stamp indicating residency registration may enroll their children.[300]
Other migrant worker families reported other obstacles in accessing schools
such as lack of assistance to help migrant children assimilate in a new school
environment. In all cases documented by Human Rights Watch, children miss at
least two to three months of school in Kyrgyzstan in order to accompany their
families to Kazakhstan for work. In a few cases documented by Human Rights
Watch, children of migrant workers missed entire academic years.

Child labor is also a problem among Kazakhstani families,
who also often rely on their children to contribute to a season’s
harvest, interfering with children’s education. However, child
labor is particularly prevalent among migrant worker families,
who are typically poor and who work together in tobacco farming in Kazakhstan in hopes of securing a basic living. In addition, the particular vulnerabilities
of migrant worker adults, including severe poverty, absence of legal residency
and employment status, low knowledge of Kazakh or Russian as well as Kazakh
labor protection laws and migration laws all serve to make migrant worker
children especially vulnerable.

There is some indication that the use of child labor in
tobacco farming in Kazakhstan has declined in recent years. PMI told Human
Rights Watch that it believed that its policies “have had a direct impact
on reducing child labor on tobacco farms.”[301] A
2006 ILO-IPEC study on child labor in agriculture found that although child
labor in tobacco farming was still prevalent, interviewees suggested that there
had been a reduction in the use of child labor, possibly in conjunction with
PMK’s policy prohibiting child labor.[302] Nevertheless, the
study found that although tobacco farmers who contract with PMK
“familiarize themselves with relevant legislation and their
responsibilities and commit themselves not to engage children under the age of
eighteen in tobacco growing and processing,” these terms “are often
violated.”[303]

The employment of children in tobacco cultivation violates
international law prohibiting the employment of children under
the age of 18 in harmful or hazardous work and also Kazakhstani law prohibiting
child labor in harmful sectors, including tobacco farming. Preventing children
from attending school violates international law guaranteeing children,
including the children of migrant workers, the right to education. Several sets
of actors share to varying degrees responsibility for the violation of these
fundamental rights and should take measures to address the situation. Tobacco
farm owners have a responsibility not to employ or allow children to work on
their farms. The Kazakhstani government should enforce existing laws
prohibiting child labor in tobacco, including through inspections and apply
proportionate and dissuasive sanctions against violators, and guarantee access
to primary education for all children, including children of migrant workers.
PMK and PMI also have the responsibility to strengthen measures to prevent the
use of child labor and support alternatives for children of migrant workers, so
that these companies do not benefit from abusive practices.

4.1 Child Labor in Tobacco Farming

Hazardous child labor

Tobacco growing and harvesting is hazardous
work due to a number of factors, including the physical difficulty of
the work and its repetitive motions, long working hours, exposure to high heat
and sun during the summer months, exposure to pesticides and to fumes from
tobacco plants, health risks associated with the handling of tobacco plants, as
well as poor sanitation and hygiene and substandard living conditions.[304]
Short-term effects of tobacco and pesticide exposure include nausea, headaches,
vomiting, and dizziness. Long-term effects of pesticide exposure can include
brain damage and cancer. For children, these hazards are
particularly acute, as immature and still-growing bodies are more vulnerable
than adults’ bodies to systemic damage.[305]

Through interviews with both children and adults Human
Rights Watch documented 86 children, aged 10-17, working, or who had previously
worked, in tobacco—72 of them working in 2009. Human Rights Watch
witnessed children working or interviewed children who said they were working
or had worked. Both parents and children interviewed by Human Rights Watch
stated that children perform the same tobacco farming work as adults,
including: planting, watering, weeding, fertilizing, harvesting, stringing and
drying tobacco. In several other cases documented by Human Rights Watch,
younger children traveled with their families but did not work.

International standards, Kazakhstani
law, and hazardous child labor

In recognition of the potential benefits of
some forms of work and of the realities that require many children to enter the
workforce to support their own or their families’ basic needs,
international law does not prohibit children from carrying out work as such. However,
international treaties address the particular circumstances under which
children under 18 may work and define standards to protect children from
exploitation and other harmful consequences of child labor. These standards
protect children from hazardous work, from working at young ages and from labor
that has a negative impact upon their education.

The UN Convention on the Rights of the Child,
the ILO Minimum Age Convention, and the ILO Worst Forms of Child Labour
Convention, all ratified by Kazakhstan, generally prohibit the employment of
children under the age of 18 in harmful or hazardous work.[306] The Worst Forms of Child Labour Convention defines the worst forms of
child labor as “slavery or practices similar to slavery, such as the sale
and trafficking of children and forced or compulsory labor.”[307] Other types of work are also prohibited if they constitute “work
which, by its nature or the circumstances in which it is carried out, is likely
to harm the health, safety or morals of children.”[308]

Although the ILO does not have a specific list
of occupations that constitute the worst forms of child labor, agriculture is
considered one of the three most dangerous sectors in which children work,
along with construction and mining.[309]
Tobacco farming, as well as cotton farming, is widely accepted as a crop in
which children under the age of 18 should not be employed, as reflected by ILO
and ILO-IPEC documentation and practice.[310] A resolution from a February 2003 ILO tripartite meeting on the future
of employment in the tobacco sector called for the ILO Director General to
continue to promote the Minimum Age Convention and the Worst forms of Child
Labor Convention and to assist in their application specifically in the tobacco
sector. The resolution also called on all parties engaged in implementing these
conventions to adopt “concrete measures to eliminate child labour in the
tobacco chain.”[311]

Kazakhstani law also contains numerous
provisions designed to protect children from working at a young age and from
harmful work, including work in tobacco. An order from the Ministry of
Labor and Social Protection of Kazakhstan regarding hazardous professions
explicitly prohibits the employment of children under 18 in tobacco.[312]
In addition, the Labor Code of Kazakhstan prohibits the employment of persons
under age 18 in “heavy physical labor or in harmful (extremely harmful) and
(or) hazardous (extremely hazardous) working conditions,” in work that is
harmful to their health and moral development, and in work requiring lifting of
heavy objects.[313]
For other types of work, the minimum age of employment is 16 years, with
possible exceptions if there is parental consent, and only in work “that
is not harmful to health and does not disrupt their studies.”[314]
Children under 18 are also required to work fewer hours per week than adults
and are prohibited from work at night and from working overtime.[315]

Hazardous child labor on Kazakhstani tobacco farms

The fact of children working in tobacco farming in Kazakhstan has been previously documented by ILO-IPEC, which in 2006 issued a report on child
labor in both tobacco and cotton farming. This report found both Kazakh and
migrant children aged 5-17 frequently working in tobacco farming.[316]
The children worked long hours, had inadequate rest, had little or no access to
proper sanitation and nutrition, were exposed to high heat and sun, had no
masks or protective clothing, suffered skin complaints from contact with
tobacco leaves, and had limited access to medical care.[317]
In 2009 a representative of Kyrgyzstan’s State Committee on Migration and
Employment at the consulate of Kyrgyzstan in Almaty, Abdykapar Tuyaliev, confirmed
to Human Rights Watch that during his visits to Almaty province, he regularly
encounters child labor in the tobacco fields and tries to encourage parents to
send children home.[318]

Migrant workers interviewed by Human Rights
Watch said that child labor in tobacco farming is common and has been going on
for years. For example, 49-year-old Gulnara G. from Kyrgyzstan told Human Rights Watch that in 2000, she sent her two oldest daughters, who were 10 and
14 at the time, to Kazakhstan to farm tobacco under the supervision of Chinara
Ch., an intermediary whom she met in Kyrgyzstan. Since 2001, Gulnara G. or her
husband had been coming annually to Kazakhstan together with their three
daughters to farm tobacco.[319]

Migrant workers with children working told Human Rights
Watch that children performed some or all of the same labor-intensive,
difficult work that adults do. For example, Alym A., a 42-year-old worker from
Karatash, Kyrgyzstan, spoke to Human Rights Watch about the work his
14-year-old daughter did throughout the 2009 season, “She did all of the
same work that we did in the fields: planted tobacco seedlings, watered the
tobacco plants, hoed, picked the leaves, and strung, dried, steamed and pressed
the leaves. All the same work, basically.”[320] Umut U., 34, from Karatash, told Human Rights Watch that she went in March 2009 to Malybai
together with her four children, aged 10, 11, 13, and 14. “The children
worked together with me on the tobacco,” Umut U. told Human Rights Watch.
“The two youngest only did the stringing following the harvest. Before
that, they were just playing. The two older children grew the seedlings in the
steam-room [in Russian, parilka], then planted them in the fields.
… The children also applied fertilizer and pesticides. We applied them
only one time. We had no special clothes or shoes.”[321]

Children worked long hours, as many as 12 to 13 hours during
the main tobacco picking and drying season [July-September] and have very few
days off, including no regular weekend days off. According to Sabir S., who was
interviewed in Malybai working with his son, 15 and daughter, 13, “The
children work like we do, doing everything. Typically we work from 7:00 a.m. to
7:00 or 8:00 p.m. About 11 to 12 hours per day. Sometimes we will come to the
field at 4:00 a.m. If the tobacco is not ready, though, we will rest. For a
whole season [of nine months] we will get about three weeks worth of days
off.”[322]
According to Sharapat Sh., who worked in Malybai with her adult son and
15-year-old daughter, the family worked 11 to 13 hours a day, first growing the
seedlings, then transplanting the seedlings on the field, and then cultivating
the plants and processing them at the end. For the nearly nine months that they
were in Kazakhstan (March 12- December 5, 2009), they took a total of no more
than 14 days off total, including weekends.[323]

Children may suffer health effects as a result of exposure
to tobacco, pesticides and the elements. Sharapat Sh., who worked with her
adult son and 15-year-old daughter in Malybai in 2009, told Human Rights Watch
that she did not know about any dangers associated with pesticides or with
working with tobacco. She recalled only an unidentified rash that appeared on
some children from families who worked in the fields together with her family.
“We don’t know of any harm [from pesticides or working with
tobacco]. But, come to think of it, some children in the fields got some kind
of rash. A red rash appeared on them on their stomachs and necks. After a few
days it disappeared.”[324]
It was impossible for Human Rights Watch to know what specifically caused the
rash.

Working in high heat under bright sun may also have negative
consequences on the health of children. In June 2009, Human Rights Watch
researchers met Raikan R., 14, who was working in Malybai together with her mother,
brother, and sister-in-law. Raikan R. had what appeared to be severe blistering
as a result of sunburn over much of her right cheek and neck. She said,
“As a result of the sun, my face is completely covered by these
splotches.”[325]

4.2 Violation of the Right to Education

In all cases researched by Human Rights Watch except one, children
working on tobacco farms missed some or all of the academic school year in
Kyrgyzstan and did not attend school in Kazakhstan. Some parents told Human
Rights Watch that they took their children out of school in Kyrgyzstan in March
or April to travel to Kazakhstan for the tobacco planting and growing seasons,
but that some family members would return home with the children in
August so that the children may begin the school year. Other children remained
with their parents until November or December to assist with the harvesting and
curing of tobacco. Many parents indicated to Human Rights Watch that they see
their children as integral to the family’s ability to complete the
labor-intensive work of the tobacco season. In only one case did parents state
that they had enrolled their children in a local school, in Chilik. In two
cases, parents interviewed by Human Rights Watch had attempted unsuccessfully to
enroll their children in local schools.

International standards and
Kazakhstani law

The right to education is affirmed in the
International Covenant on Economic, Social and Cultural Rights and in the
Convention on the Rights of the Child.[326] States are required to make primary education compulsory and free to
all,[327] and to protect children from work that interferes with their
education.[328] Furthermore, the Worst Forms of Labor Convention highlights the
“importance of education in eliminating child labor” and calls upon
states to ensure access to free basic education and vocational training.[329] These obligations extend to all children on the state’s
territory, including children of migrant workers, even migrant workers whose
migration status or employment status is irregular.[330]

Kazakhstani law establishes compulsory
primary and secondary education (grades 1-12) for citizens of Kazakhstan, age 16 and under. Foreigners and persons without citizenship permanently living
in Kazakhstan are also guaranteed this right.[331]
In order for a child to be enrolled in a school, a parent or guardian must
present a document verifying permanent residence in the Republic of Kazakhstan with a stamp indicating residency registration.[332] In 2007 the UN
Committee on the Rights of the Child called on the government to “ensure
that compulsory education is free of cost and accessible for all
children,” and to take specific steps to enroll particularly vulnerable
populations, including children living in rural and remote areas and children
of migrant workers, in schools.[333]

Children missing school

In all cases documented by Human Rights Watch, children of
migrant workers missed at least two to three months of school while they were
engaged in tobacco farming. Gulnara G.’s youngest daughter, Bibigul G.,
now 16, was working in the tobacco fields at the time of the Human Rights Watch
interview in September 2009 and had been working with the family each season in
recent years.[334]
Each year, Bibigul G. would leave school in Kyrgyzstan at the end of April to
travel to Kazakhstan with her family to begin farming. The family planned to
return to Kyrgyzstan only in November 2009, at which time Bibigul G. could
return to school. Bibigul G. worked full time farming tobacco while in Kazakhstan and did not attend a local school.[335]
In May 2009 Almira A. traveled with her 16-year-old daughter for the first time
to Kazakhstan, where they worked together for the entire tobacco season. She
told Human Rights Watch, “My daughter should have graduated from school
this year. She didn’t go to school there [in Kazakhstan]. We went with
her for work, not for study!”[336]

According to Alym A., who worked with his wife and
14-year-old daughter in Kazakhstan for the 2009 tobacco season, “Our
daughter was always working with us. She didn’t go to school [in Kazakhstan]. After we came back to Kyrgyzstan, she went to school. In the end she missed
six months of school.”[337]
Another worker told Human Rights Watch that his daughter, 16, and son, 14,
worked together with him and his wife in Malybai from March 7, 2009 to November
20, 2009. “Our children worked with us. They didn’t go to school
[in Kazakhstan]. They missed about seven months of school.”[338]
Akbar A., from Uzgen, Kyrgyzstan, told Human Rights Watch that each year his
family submits a petition to take the children, ages 15 and 12, out of school
early, in March, so that the family can travel to Kazakhstan for tobacco
farming. The children work with their parents farming tobacco from
March-August, when the children return with their mother to begin the school
year.[339]

Some children missed whole school years if their family did not
return to Kyrgyzstan for the winter. Nadira N. worked in Malybai with her
children for several tobacco seasons, beginning in 2004. Her daughter, Aigul N.
told Human Rights Watch that she missed two years of school, and found it
difficult to return to her studies. “I was 12 years old when we went [to Kazakhstan in 2004]. I worked with my mother from morning to night. Now I’m in tenth
grade. I want to be a doctor. When we came back in August 2006 it was difficult
to study: algebra and geometry were especially hard. Another one of my
classmates had similar difficulties, as he had also worked for several years in
Kazakhstan,” she said.[340]

Ulkan U., 41, from Suzak, Kyrgyzstan, told Human Rights
Watch that in April 2007 she came to Malybai with her four children, now ages
7, 12, 14 and 17. The family was beginning its third season in tobacco farming.
“Our children don’t study,” Ulkan U. said. “The three
oldest children work with me, the youngest doesn’t work. Since we left
home in 2007, we have worked here cultivating tobacco and have not gone
home.”[341]
As described above, Ulkan U. and her children remained in Kazakhstan for three tobacco seasons after falling into a situation of debt bondage when their
first employer charged her excessive recruitment fees which he required her
repay.

As noted above, the 2006 ILO-IPEC report found that child
labor in tobacco farming was prevalent not only among migrant workers’
children but also among Kazakhstani families. Local Kazakhstani children may
also not receive full education because they are expected to assist their
families. While Human Right Watch did not set out to research this, we did
interview one Kazakhstani boy, 15, who said that for the first several months
of the school year, which coincide with the end of the tobacco harvest, he
attends school only in the morning. In the afternoon, he helps his family
string and dry tobacco at home.[342]

Accessing local schools

Local officials and local trade union representatives told
Human Rights Watch that migrant workers’ children could attend local
schools without difficulty. However, Human Rights Watch found that for migrant
tobacco workers from Kyrgyzstan, lack of proper registration was an obstacle
preventing children from attending school in Kazakhstan. Human Rights Watch
received conflicting information regarding data for migrant children from Kyrgyzstan enrolled in Almaty province. In a March 2010 letter to Human Rights Watch, the
government of Kazakhstan informed Human Rights Watch that its records indicate
that 2,540 children of migrants study in schools in Almaty province, but none
of those enrolled are from Kyrgyzstan.[343] However, the
director of a high school in Chilik told Human Rights Watch that 30 migrant
worker children, mainly from Osh and the Osh region of Kyrgyzstan, study in the school.[344]
Neither the school director nor Human Rights Watch could determine the reason
for this discrepancy.

According to one akim [mayor] in a major tobacco-growing district,
“Children [of migrant workers] attend classes as auditors, or children
who observe in the classroom but who are not actually enrolled. Our government
doesn’t provide money for their education. Therefore, we try to
accommodate and accept them as auditors. After all, they all will just leave
afterwards.”[345]
The head of the Almaty Trade Union of Workers in the Agro-Industrial Complex
told Human Rights Watch, “Children study in schools. If someone is here
legally or illegally, it doesn’t matter, they can all study.”[346]
Also, as described above, local school officials told PMI that migrant
workers’ children can attend Kazakhstani schools with written permission
from their parents and the Kazakhstani farmer.

However, in interviews with Human Rights Watch two migrant
worker parents who wanted to send their children to local schools specifically
cited the lack of residency registration as an obstacle preventing their
children from attending. Sabir S. worked in Malybai in 2009 with his wife and
two children, 15 and 13, and had worked in Karaturyk in previous years. He told
Human Rights Watch, “Our children will go back to Nookat, Kyrgyzstan, in September. Without residency registration the schools here won’t take
them.”[347]
Zhazira Zh., who also worked in Malybai, also said her 14-year-old daughter was
not able to go to school because of the absence of registration. “In
order to send Raikan R. to school, we don’t have the proper documents,
just her birth certificate,” she said. One unofficial intermediary from Kyrgyzstan who also farms tobacco and has been working in Kazakhstan for 10 years, said, “They
don’t take children into the schools here. … I don’t know
anyone who had children who studied here.”[348]

Experts confirmed that children of migrant workers face
difficulties enrolling in schools in Kazakhstan. According to Dana Zhandayeva,
the ILO-IPEC national project coordinator in Kazakhstan, “The absence of
residency registration is an obstacle for children to enroll in schools. In
addition, teachers often feel reluctant to accept migrant children into their
classrooms. Migrant children may struggle academically in the new language and
the new academic environment, and teachers are responsible to the Ministry of
Education for the performance of each student in their classrooms. Access to
local schools for migrant [children] is practically not possible.[349]
The 2006 ILO-IPEC study on children in tobacco and cotton farming also noted
that “many children from migrant families could not attend school because
they did not have legal status in Kazakhstan and they had to work.”[350]

Some migrant workers who wanted to provide their children
with education in Kazakhstan stated that their children, who may struggle with
Kazakh language and are often seen as outsiders, have difficulty assimilating
into local schools. Nazgul N. and Bazarkan B., who are from Nookat, Kyrgyzstan,
but had been living continuously in the village of Lavar with their children
since 2006, told Human Rights Watch that they attempted to enroll their
youngest child, eight, in a local school, but that they stopped sending him
because the other children beat him and they felt it was not safe. Their oldest
children, aged 12, 14 and 17, have not attended school since 2006.[351]

A union organizer who works to protect the interests of
migrant workers from Kyrgyzstan working in agriculture in the Almaty province
told Human Rights Watch, “While there are children [of migrant workers]
who study in school, they are children of those migrant workers who more or
less permanently live in Kazakhstan.”[352] Zhandayeva
similarly stated, “Only children of migrant workers who remain in Kazakhstan continuously for several years will have the opportunity to study.”[353]
Abdykapar Tuyaliev, a representative of Kyrgyzstan’s State Committee on
Migration and Employment at the consulate in Almaty, also confirmed this.[354]
The director of a school in Chilik who told Human Rights Watch that 30 migrant
worker children from Kyrgyzstan study in the school, told Human Rights Watch
that she requires that the children stay for the entire school year.[355]

The only migrant worker parents interviewed by Human Rights
Watch who had children who enrolled in a local school were those who stayed in Kazakhstan continuously. Dinara D. told Human Rights Watch that she and her family had been
coming to Kazakhstan for ten years, always working with the same landowner,
farming tobacco and vegetables. Dinara D. from Karasuu, Kyrgyzstan told Human Rights Watch, “Our children go to school in Chilik. They are in the
ninth and tenth grades. They study in Kazakh. Over the winter they go home [and
also go to school].”[356]

4.3 Response of the Government of Kazakhstan to
Migrant Child Labor

In correspondence with Human Rights Watch, the government of
Kazakhstan reported 911 incidents of child labor in 2009 and 1,202 incidents
in 2008. An unspecified number of cases of child labor occurred in tobacco
fields in Almaty province. The government did not elaborate on the methodology
of these findings (see Appendix C).[357]

In response to the problem of child labor and in conjunction
with its ratification of the ILO Worst Forms of Child Labour Convention in
2003, the government has developed a number of national programs and has
established inter-agency groups tasked with addressing child labor. Since 2004,
the government of Kazakhstan has participated in an ILO-IPEC regional program
aimed at contributing to the elimination of the worst forms of child labor.[358]
Within the scope of this project, the government established, in 2006, a
National Coordinating Council on Child Labor under the Ministry of Labor and
Social Protection, which brings together representatives from relevant
ministries and government agencies working on child labor as well as
representatives from trade unions and the employers’ confederation.[359]
The Coordinating Council’s responsibilities include: coordination and
guidance of activities regarding eradication of the worst forms of child labor;
dissemination of information; and integration of the issue of child labor and
its worst forms in the activities of various agencies.[360]

In 2007, the government also created a focal unit for child
labor within the Ministry of Labor and Social Protection, called the National
Information and Resource Centre on the Problems of Child Labor. This agency prepares
reports on Kazakhstan’s implementation of the Worst Forms of Child Labor
Convention and the ILO Minimum Employment Age Convention.[361]
According to Dana Zhandayeva of the ILO-IPEC office in Kazakhstan, the Inter-Agency Commission on Minors’ Affairs and Protection of their Rights
under the Government of the Republic of Kazakhstan, which coordinates all
agencies working on children and children’s rights, is also tasked with
addressing child labor among other concerns.[362]

Together with ILO-IPEC, a number of Kazakhstani government
agencies, the Federation of Trade Unions, and the Confederation of Employers
created a plan of action for combating the worst forms of child labor in
Kazakhstan from 2009-2011. The plan’s priority areas are child labor in agriculture
and the informal sector in cities. Specific actions include: creating of a
system for monitoring child labor; conducting information campaigns to raise
awareness about child labor among the public, government officials and with
families; creating alternative educational programs; ensuring biannual meetings
of the National Coordinating Council; and developing and implementing policies
and laws.[363]
The plan mentions one project targeted specifically at migrant child workers,
in the context of the ILO-IPEC action programme. Under the “Enrolling
children in educational programs,” project heading, the plan envisions
educational and other alternative programs in southern Kazakhstan for child migrant workers. This project also includes “the opening of a
support center for children in Almaty province.”[364]

These support centers are also a component of a national
program called “Children of Kazakhstan 2007-2011,” designed to
improve the lives of children. Two centers, one in Almaty province and one in Southern Kazakhstan province, were established to reduce the use of child labor and
eliminate the worst forms of child labor. The activities of these centers are
described in detail in a March 29, 2010 letter from the government of
Kazakhstan, which can be found in Appendix C of this report. As another measure
to combat child labor, the government instructed local government officials to
create a unified database of children employed illegally; hold accountable
employers using child labor; and cooperate with other agencies in preventing
the worst forms of child labor. The government did not specify how it addresses
the specific concerns related to migrant workers in these policies.[365]

The government of Kazakhstan also informed Human Rights
Watch that the Ministry of Education and Science contributed recommendations to
projects under the Ministry of Employment and Social Protection supporting
agricultural workers. The recommendations called for “constant monitoring
of child labor, including the elimination of child labor in cotton and tobacco
farming, uncovering cases of child labor, concluding memoranda with employers
to create safe conditions for child labor.”[366]

However, based on the information available to Human Rights
Watch, we believe that these initiatives lack sufficient focus to address the
particular concerns regarding child labor among migrant workers. This view is
shared by an international expert working on migrant workers and child labor in
Kazakhstan told Human Rights Watch that despite these measures, coordination
among agencies remains poor, and the government lacks sufficient knowledge and
capacity to effectively address child labor.[367] Interviewees in
the 2006 ILO-IPEC study also considered the government’s response to
child labor inadequate, especially for migrant families, including children,
who are “the most vulnerable.”[368]

4.4 Response of Philip Morris International and
Philip Morris Kazakhstan to Child Labor

PMI has vigorously articulated a policy opposing child labor
in tobacco. Its website states that the company is “opposed to child
labor playing any part in [its] industry.”[369]
PMI’s Corporate Code of Conduct states that PMI and its affiliates do not
engage in or condone child labor and that employees will “work with
others… to progressively eliminate these abuses in the labor market
related to our business supply chain.”[370] In a November 10,
2009 letter to Human Rights Watch PMI stated that “Philip Morris
International and its affiliates, including Philip Morris Kazakhstan, have
policies and procedures in place that seek to prevent child
labor….”[371]
In a November 13, 2009 meeting with Human Rights Watch in Almaty, Kazakhstan,
PMI and PMK executives reiterated that PMI has a zero tolerance policy on child
labor.[372]
As described in the previous chapter, PMI’s Good Agricultural Practices
(GAP), or set of requirements it expects its suppliers worldwide to implement, prohibit
tobacco leaf suppliers from using child labor on their farms, among other
requirements.

PMI and PMK have implemented monitoring, training and alternative
programs designed to detect and prevent child labor in tobacco in Kazakhstan.
Despite these efforts, child labor remains a serious concern in tobacco farming.
As noted above, Human Rights Watch documented 72 incidents of child labor in
2009 and found an acceptance of the practice among migrant workers and in local
communities. In a January 14, 2010 letter to Human Rights Watch, PMI indicated
that PMK agronomists had reported 22 incidents of child labor on farms from
which PMK purchases tobacco in 2009. The letter further stated that although
PMI and PMK believe that “the policies and procedures we have adopted and
implemented have had a direct impact on reducing child labor on tobacco
farms,” 22 incidents of child labor are not acceptable.[373]

Human Rights Watch recognizes that PMI and PMK have made
efforts to combat child labor in Kazakhstan but believes that there is much
more the companies need to do. PMI and PMK have an important role to play in
preventing child labor. In addition to the key structural changes described in
the previous chapter related to labor terms and conditions, PMI and PMK should
implement other specific measures. These include improved and expert monitoring,
additional awareness raising for migrant workers and farmers, support of
school attendance for migrant workers’ children, and support of
sustained, accessible alternative educational and leisure programming for
children of migrant workers. In meetings and correspondence with Human Rights
Watch, PMI stated its intention to strengthen its efforts to prevent child
labor, including by working with a third-party company with expertise in
monitoring and supporting programs to provide alternative educational or other
programs for children.[374]

Monitoring by PMK

As described above, detecting and reporting incidents of
child labor are key elements of the monitoring conducted by PMK agronomists to
ensure farmers’ compliance with PMI’s Good Agricultural Practices (GAP)
policy. As part of this, PMK maintains a record of all farms hiring migrant
workers, at least in part in recognition of the more frequent use of child
labor among migrant workers. In 2009, there were four PMK agronomists
responsible for monitoring 519 farms in the Enbekshikazakh district.

PMK agronomists recorded a total of 22, 36 and 54 instances
of child labor in 2009, 2008, and 2007, respectively. PMK acknowledged these
figures might not be comprehensive because in some instances families may hide
children when they see the agronomist arriving.[375]
Prior to 2007, there was no formal recording system, although, according to PMI
“child labor prevention was already a central part of PMK’s
GAP program and its regular training for farmers.”[376]

In the instances of child labor identified by PMK
agronomists in 2009, the farmer was warned that repeat incidents would result
in termination or discontinuation of his contract and the name and
identification number of the farmer and the location are recorded in a book. PMK
discovered a repeat violation on one farm in 2009 and intends to discontinue
its relationship with that farmer in 2010.[377]

Migrant workers interviewed by Human Rights Watch reported a
range of experiences with PMK agronomists. Some migrant workers reported seeing
a PMK agronomist regularly, at least once a month or more frequently.[378]
Others saw an agronomist only a few times during the season, or not at all, as
the following cases illustrate. Some of these workers had children working
together with them in the fields. Zhanyl Zh., who worked in Malybai with her
husband and adult children, told Human Rights Watch, “The Philip Morris
[Kazakhstan] agronomist comes a few times per year. He looks at how the tobacco
is growing. He tells us when to water, when to fertilize.”[379]
According Alym A., who in 2009 worked together with his wife and 14-year-old
daughter in the village of Karaturyk, “While we were actually working, no
agronomist came to the fields. At the beginning, there was a Russian man, an
agronomist from Philip Morris [Kazakhstan]. People told us that he was replaced
by someone else, but we never saw him [the replacement].”[380]
Sharapat Sh., who worked with her adult son and 15-year-old daughter in Malybai
in 2009, told Human Rights Watch, “No one [from Philip Morris Kazakhstan]
ever came to see us.”[381]

Human Rights Watch interviewed one family of migrant workers
who stated that the PMK agronomist raised concern directly about children
working. Nursuluu N., from Uzgen, Kyrgyzstan, who was working in Malybai in
2009 with her son, 11, daughter, 12, niece, 17, and her daughter-in-law, said,
“A man from Philip Morris [Kazakhstan] comes, and gets angry when the
children are working. He says, ‘I don’t want to see
them!’”[382]
Her daughter-in-law confirmed the visits of the agronomist and the inspecting
for child labor, “The agronomist comes almost every day and asks how we
are getting along with the landowner. When [inspection] commissions come, the
children simply [stop working] and start to play.”[383]

Training and awareness-raising by PMK

PMI and PMK executives told Human Rights Watch that PMK
agronomists conduct four training sessions per year for all farmers contracting
with PMK. The trainings always include prevention of child labor.[384]
Farmers are required to attend and to confirm their participation by signature.
PMI and PMK executives also stated that “workers also usually attend, but
they don’t sign in.”[385]

However, no migrant workers whom Human Rights Watch asked
about trainings and instructional materials indicated that they had
participated in any trainings, and only one migrant worker stated that she had
been given instructional materials, a brochure about pesticide use.[386]
Alym A., who worked in 2009 in Karaturyk said, “There were no trainings
about tobacco. No one gave us any kinds of brochures.”[387]
Nurdin N., who also worked in 2009 in Karaturyk said, “There were no
trainings of any kind. What, trainings to teach us something? How to harvest
tobacco? No, nothing like that. And they didn’t give out any
[instructional] materials.”[388]
Sharapat Sh., who worked in Malybai in 2009 said, “There were no
seminars. No one gave out any handouts or brochures.”[389] Umut U., who worked in 2009 in Malybai with her children, also said, “There were no
trainings. They also didn’t give out any brochures. No one teaches us how
to cultivate tobacco.”[390]

The government of Kazakhstan, PMI and PMK should enhance
education for both farmers and migrant workers regarding the consequences of
child labor. They should also ensure access to education and other programs for
children, and insist on children’s attendance at school.

Prevention through education and other alternative
programs for children

During the November 13, 2009 meeting with PMI and PMK executives,
one PMI official told Human Rights Watch that according to the department of
education in Almaty province and local schools in the Enbekshikazakh district,
there are five different documents required for children to be enrolled in
schools, including local residency registration, which irregular migrant
workers do not have. However, school officials also told PMI representatives
that “the majority of schools accept migrants’ children in any
case, requiring only written requests from the farmer and the migrant worker
parent, and a birth certificate.”[391] This finding
differed significantly from the information provided by the government of Kazakhstan as well as Human Rights Watch’s findings regarding the ease of access to
schools for migrant worker children, as described above. Education officials
also told PMI that local schools have summer programs for children, but only
for those who are officially enrolled.[392]

In reality, children of migrant workers in Kazakhstan not only have limited opportunities to attend school but also in the summer have
no access to programs or activities that would serve as alternatives to
working. PMK funded a Child Labor Prevention Program from June to August 2007
that was implemented by the Eurasia Foundation of Central Asia (EFCA) through
grants to local NGOs. The program came at the initiative of PMK, which
approached the foundation with a project to address child labor.[393]
EFCA organized four 15-day summer camps for 337 children of migrant workers and
263 children of local tobacco farmers. According to PMI the project “was
completed as planned,” and “the results were viewed as a success in
that the children received training, enjoyed the activities, and most
important, were not engaged in child labor.”[394]
EFCA President Jeff Erlich described one of the challenges the program faced:
Many farmers did not support the summer camps, and in at least one instance a
farmer drove to a camp and attempted to bring the children back to the farm,
saying, for example, “Give us the kids back. We pay for them, and you are
taking them away.”[395]
PMK decided not to continue its support of the summer camps program.[396]
A PMI executive told Human Rights Watch that the company “found there to
be too much possible risk” with respect to the safety of children at
camps in remote locations.[397]

Although many migrant workers with children in Kazakhstan
interviewed by Human Rights Watch had worked repeatedly for many years, only
one woman, an intermediary from Kyrgyzstan who had worked for 10 years, stated
that she knew about the summer program in Chilik sponsored by PMK and knew
children who had attended.[398]
Other families interviewed by Human Rights Watch, and specifically asked about
summer programs, said that they had never heard of such programs.

Going forward, PMI plans to “expand their working
relationships with local akimyats [local government] to improve the situation
for migrant workers’ children,” but did not elaborate as to specific
steps. They also intend to evaluate possible options regarding alternative
education or leisure programs for children of migrant workers, such as the
summer camp program, possibly through NGOs or local schools.[399]
In March 2010, Philip Morris International executives told Human Rights Watch
that Philip Morris Kazakhstan had begun a discussion with the ILO-IPEC office
in Almaty about these types of activities.[400]

Recommendations

To the Government of Kazakhstan

Regarding child labor

Rigorously enforce existing
laws prohibiting child labor in tobacco farming, including by allocating
resources to ensure a sufficient number of inspectors to guarantee effective
implementation of child labor laws through proactive monitoring and unannounced
on-site inspections, and by imposing effective penalties against employers who
violate the law.

Ensure that all children,
including children of migrant workers, are able to access existing schools and
summer educational programs, including through programs to identify migrant
children who are not in school. Ensure that residency registration is not a
requirement for school enrolment and identify and address other barriers that
may inhibit enrollment and attendance. Work together with Philip Morris
International and Philip Morris Kazakhstan to develop alternative summer
programs for children, including children of migrant workers, as a means of
providing alternatives to work.

Regarding enforcement of labor and other
laws

Rigorously investigate and
prosecute employers who retain passports and other identity documents, force
employees to work long hours and without days off, employ child labor, or
commit other violations of Kazakhstani law.

Rigorously enforce the legal
requirement for employers to pay regular wages and to provide written
employment contracts to workers, including migrant workers.

Regarding effective remedies for abuse

Ensure that migrant workers
who access the redress mechanism or make complaints of abuse are protected
against reprisals by their employer or the landowner for whom they work.

Ensure the same protections
and access to redress mechanisms to all migrant workers, including those
working informally.

Expand the authority of the
labor inspectorate to investigate fully complaints of any labor law violations,
including wage violations, even in cases in which workers are employed
informally.

Ensure that the labor
inspectorate has sufficient staff trained in addressing the complaints of
migrant workers, including in cases when there is no employment contract or no
work permit.

Train prosecutors to more
rigorously investigate complaints made by migrant workers, including criminal
as well as labor claims. Emphasize that all labor claims should be pursued,
even in the absence of written labor contracts, and encourage pursuit of evidence
other than written labor contracts to demonstrate employment relations.

Train judges to consider all
cases of alleged violations of the rights of migrant workers, even those in
which workers do not have employment contracts to demonstrate formal work relations,
including by emphasizing the possibility that other evidence may be sufficient
to prove employment relations.

Regarding migration policy

Facilitate the lawful hiring
of migrant agricultural workers each year depending on the actual need of
employers for migrant agricultural workers, including in the Enbekshikazakh
district of Almaty province.

Allow workers to apply for a
work permit directly with a government agency, such as the local departments of
the Ministry of Labor and Social Protection of the Population of the Republic of Kazakhstan. Workers should be given a reasonable period following their entry
into Kazakhstan to apply for a work permit and then an additional period to
identify an employer.

Simplify the registration
process to allow migrant workers to register their stay directly with local
administrative agencies, within a reasonable period after their arrival in Kazakhstan. Residency registration should not be dependent on an employer.

Regarding rights education

Take immediate action to
inform and educate migrant workers arriving in Kazakhstan of their rights under
Kazakhstani law.

Consider organizing these campaigns in conjunction
with employers, NGOs, diaspora groups, and embassies of governments whose
citizens work in Kazakhstan.

As part of rights-awareness training, ensure that
migrant workers are aware of the complaint mechanisms available to them and the
location and contact information of relevant offices.

To the greatest extent possible, written materials
should be available in the languages of the migrants.

Regarding international law

Sign and ratify the following
international treaties relevant to protection of migrant workers and comply with
treaty-body reporting requirements and recommendations

The International Convention on the Protection of
the Rights of All Migrant Workers and Members of Their Families.

The Optional Protocol to the International
Covenant on Economic, Social and Cultural Rights.

To Philip Morris International

As the parent company, Philip Morris
International has a responsibility for ensuring implementation of these
recommendations for all of its global subsidiaries, including for Philip Morris
Kazakhstan.

Revise the Good Agricultural
Practices (GAP) Guidelines and Assessment to include the protection of labor
and other rights of workers employed by suppliers to Philip Morris
International and its subsidiaries. In the meantime, all Philip Morris
International subsidiaries, including Philip Morris Kazakhstan, should
implement these provisions directly and without delay:

Signed, enforceable employment contracts with all
workers (not just “head of household”) in a language which the
worker understands if that language is different from the official language.

No less than monthly wage payments to all workers,
not just the “head of family,” as required under Kazakhstani law.

A strict prohibition on suppliers retaining
workers’, including migrant workers’, passports or other identity
documents, without workers’ informed, written consent, in a language
which they understand.

Limits on working hours for workers; guarantee of
at least one day off per week.

Provision of potable water in sufficient
quantities for all workers every day.

Provision of adequate sanitary facilities,
including hand and other washing facilities, to all workers, including those
living in remote areas.

Provision of adequate housing facilities, when the
employer provides housing as an element of compensation.

Strict enforcement of safety procedures for use
and handling of all toxic substances such as pesticides and fertilizers,
including the provision of protective clothing.

Expand the GAP Guidelines and
Assessment on Integrated Pest Management to include:

Direct provision to all workers of first aid and
safe-handling instructions for all pesticides specific to each pesticide
used in a particular season, in a language that the worker understands. Direct
provision to all workers engaged in handling and applying pesticides of all
necessary personal protective equipment as required by the label instructions
specific for each pesticide used in a particular season. This equipment
should be provided for free, without any cost to the worker.

Enhance programs to eliminate
child labor in tobacco including by:

Working with federal and local government
officials to ensure full and free access for children of migrant workers to
local schools. Special measures should be taken to ensure that all children of
school age who are found working are enrolled in school or a suitable academic
alternative, in line with Kazakhstan law that mandates primary and secondary
schooling.

Implementing each year free summer programs for
children of migrant workers and local children, as an alternative to working in
tobacco. These programs should be accessible locally, as parents may be
reluctant to send their children to overnight summer camps.

Training agronomists, suppliers, and workers on
the hazards to children working in tobacco. Utilize outside experts on child
labor and the worst forms of child labor to conduct these trainings where
appropriate.

Training agronomists, suppliers, and workers on
the importance of education for children, including for children’s
long-term future success and to escape the cycle of poverty in which many
migrant workers find themselves.

Work with employers who are found to use child
labor to bring their practices into compliance with national law and
international norms. Discontinue contracts with farmers that repeatedly violate
laws prohibiting child labor.

Where possible, cooperate with the ILO-IPEC,
non-governmental organizations, and others undertaking efforts to prevent child
labor.

Establish within Philip Morris
International an internal monitoring department responsible for preventing and
remedying a range of rights issues including: child labor, forced labor, debt
bondage, illegal passport retention, non-provision of contracts, non-payment of
wages, excessively long working hours and lack of days off, lack of potable
water, lack of adequate hand washing and other sanitary facilities, and lack of
adequate housing.

Ensure an adequate number of
monitors to conduct regular and rigorous monitoring of all farms, including
through unannounced visits.

Ensure monitors are
sufficiently independent from local suppliers.

Set up a complaint mechanism
whereby workers are able to submit complaints directly to PMI subsidiaries
about any concerns about labor or other violations

Ensure that workers are able
to submit complaints and speak with monitors, including third party monitors, without
fear of repercussions from PMI, its subsidiaries or suppliers.

Immediately investigate in a
fair and transparent manner all reports of abuse reported by Philip Morris
International monitors, agronomists, third parties, workers, including migrant
workers, or others.

To the greatest extent
possible, ensure that workers, including migrant workers, employed by suppliers
be present at the delivery point for the end-of-season delivery of tobacco to
ensure a degree of transparency in the purchasing process.

Ensure qualified, experienced
independent third-party monitoring of implementation of all of the above-stated
policies.

Acknowledgements

This report was written by Jane Buchanan, senior researcher
in the Europe and Central Asia Division of Human Rights Watch. Jane Buchanan,
Masha Lisitsyna, researcher in the Europe and Central Asia Division, and Kamil
Satkanbayev, consultant to Human Rights Watch, conducted the research. Kamil Satkanbayev
also provided Kyrgyz-Russian and Uzbek- Russian interpretation. Andrea Berg,
researcher, and Vika Kim, associate in the Europe and Central Asia Division,
also conducted research for this report. Yulia Gorbunova and Erica Lally,
associates, and Alexander Rahmonov, Geoffrey Schotter, Peter Slezkine and Kate
Tsyvkin, interns in the Europe and Central Asia division, conducted background
research for this report.

Human Rights Watch expresses its gratitude to
the migrant workers who shared their stories with us. Human Rights Watch also
thanks the many individuals and organizations in Kazakhstan that contributed to
this report with their time, expertise and information.

[1]Kazakhstan also has significant outward
migration, primarily to Russia. World Bank, “Migration and
Remittances in Kazakhstan,” September 2007,
http://siteresources.worldbank.org/INTKAZAKHSTAN/Country%20Home/21490937/MigrationReportStoryforKZwebsiteEng.pdf
(accessed March 10, 2010).

[2] In terms
of GDP. World Bank GDP figures for 2008 (not adjusted for inflation): Russia: US$1.61 trillion; Ukraine: US$180 billion; Kazakhstan US$132 billion.
http://siteresources.worldbank.org/DATASTATISTICS/Resources/GDP.pdf (accessed
March 10, 2010). World Bank Data Finder, GDP Growth (annual %), available at
http://datafinder.worldbank.org/world-bank-data-finder (accessed December 30,
2009). Kazakhstan ranks second in the CIS in terms of Gross National Income
(GNI). GNI in terms of purchasing power parity (adjusted for price level
differences across countries) in 2008 was $9,690 for Kazakhstan and $7,210 in
Ukraine. World Bank, Gross National Income per capita, 2008, Atlas Method and
PPP, available at
http://siteresources.worldbank.org/DATASTATISTICS/Resources/GNIPC.pdf (accessed
December 30, 2009).

[3] Visa-free
regimes are in place between Kazakhstan and the countries of the Commonwealth
of Independent States (CIS) except for Turkmenistan. Ministry of Foreign
Affairs of the Republic of Kazakhstan,
http://portal.mfa.kz/portal/page/portal/mfa/en/content/consular/regime
(accessed January 20, 2010).

[4] The
adjective “Kazakhstani” is used throughout this report to denote
the government of Kazakhstan and individuals who are citizens of Kazakhstan. “Kazakh” is used to denote Kazakh ethnicity and language.

[7]
“Data on the hiring of foreign workers in the Republic of Kazakhstan by
country and industry,” Letter of the Ministry of Labor and Social
Protection of the Republic of Kazakhstan to Human Rights Watch, January 25,
2010, see Appendix C.

[19] For more
background information on Kyrgyzstan, Tajikistan, and Uzbekistan, see Human Rights Watch, “Are You Happy to Cheat Us? Exploitation of Migrant
Construction Workers in Russia,”
http://www.hrw.org/en/reports/2009/02/09/are-you-happy-cheat-us

[20] See
“Presentation of the Reports on Migration and Remittances,” at
World Bank, “Migration and Remittances in Kazakhstan,” September
2007.

[21]
Kazakhstan has a GNI per capita (in terms of purchasing power parity) of
$9,690, which is more than three and a half times that of Uzbekistan ($2,660);
four and a half times that of Kyrgyzstan ($2,130) and nearly five times that of
Tajikistan ($1,860). World Bank, Gross National Income per capita, 2008, Atlas
Method and PPP.

[24] See
World Bank, “Migration and Remittance Trends 2009,” Migration and
Development Brief 11, November 3, 2009, available at http://siteresources.worldbank.org/INTPROSPECTS/Resources/334934-1110315015165/MigrationAndDevelopmentBrief11.pdf
(accessed January 18, 2010), and Awad, “The Global Economic Crisis and
Migrant Workers.”

[25] See
Organization for Security and Cooperation in Europe Office of Democratic
Institutions and Human Rights (OSCE-ODIHR), Preliminary Conclusions on Laws of
the Republic of Kazakhstan Regulating Employment of Foreign Citizens on the
Territory of the Republic of Kazakhstan, Warsaw, June 2007; ILO, “Rights
of Migrant Workers in Kazakhstan: National Legislation, International Standards
and Practices,” May 2008.
http://www.ilo.org/public/english/region/eurpro/moscow/info/publ/right_migrant_kaz_en.pdf;
and International Federation for Human Rights (FIDH), “Kazakhstan/Kyrgyzstan:
Exploitation of Migrant Workers, Protection Denied to Asylum-Seekers and
Refugees,” no. 503a, October 2009.

[26] Law on
Employment of the Republic of Kazakhstan, art. 11 and Government Resolution,
no. 836, June 19, 2001.

[27] Migrant
workers who are permanent residents of Kazakhstan are not subject to quotas for
employment. A number of other types of foreign workers are not subject to
quotas, including senior managers of foreign companies and certain other
businesses; diplomats and representatives of international organizations;
humanitarian workers, artists, athletes, refugees, and others. Notably, there
is no category allotting quotas for unskilled non-agricultural workers, such as
construction workers, despite the large number of these workers who seek
employment in Kazakhstan. See Kazakhstan International Bureau for Human Rights
and the Rule of Law (KBHR), “Analysis of the Laws of the Republic of Kazakhstan Regarding Employment of Foreign Workers on the Territory of Kazakhstan,” Almaty, 2007, in Russian.

[28] For
additional detail see KBHR, “Analysis of the Laws of the Republic of
Kazakhstan Regarding Employment of Foreign Workers,” and ILO,
“Rights of Migrant Workers in Kazakhstan.”

[29]
Agreement between the government of the Republic of Kazakhstan and the
Government of Kyrgyzstan concerning labor activity and social protection of
migrant workers, employed in agricultural work in border regions, July 9, 2002,
approved by Resolution of the Government of the Republic of Kazakhstan, January
16, 2003; and Agreement between the government of the Republic of Kazakhstan
and the Government of Kyrgyzstan concerning labor activity and rights
protection of migrant workers, who are citizens of Kazakhstan and temporarily
working on the territory of the Republic of Kyrgyzstan and concerning the labor
activity and rights protection of migrant workers, who are citizens of the
Republic of Kyrgyzstan and temporarily working on the territory of the Republic
of Kazakhstan, July 4, 2006.

[30]
Resolution of the Government of Kazakhstan, no. 1197, December 22, 2008, On
establishing of a quota for Foreign Labor Force Industrial Intake for the Labor
Activity in the Republic of Kazakhstan for 2009 and Introduction of Amendments
into Resolution of the Government of the Republic of Kazakhstan, no. 753,
August 29, 2007. Figures for approximate number of people based on Ministry of
Labor and Social Protection of the Population of the Republic of Kazakhstan data for 2008, as cited in ILO, “Rights of Migrant Workers in Kazakhstan.”

[33] It is
not within the scope of this report to analyze in detail the development of
Kazakhstani law and policy regarding migrant workers, and detailed analyses can
be found in other recent publications. See: ILO, “Rights of Migrant
Workers in Kazakhstan,” and International Organization for Migration
(IOM), “Kazakhstan: Facts and Figures,” August 2007, available at
http://www.iom.int/jahia/Jahia/activities/asia-and-oceania/central-asia/kazakhstan
(accessed December 30, 2009).

[34] As set
forth in the Law on Employment and Government Resolution, no. 836, June 19,
2001. See Regarding Employment of Foreign Workers, “Analysis of the
Laws of the Republic of Kazakhstan,” pp. 18-33, and ILO, “Rights of
Migrant Workers in Kazakhstan,” pp. 15-17.

[38] Government
Decree No. 136 of 28 January 2000 on various questions of legal regulation for
the stay of foreign citizens in the Republic of Kazakhstan,
http://portal.mfa.kz/portal/page/portal/mfa/ru/content/consular_info/foreigners
(accessed January 19, 2010).

[40] Government
Decree No. 136 of 28 January 2000 on various questions of legal regulation for
the stay of foreign citizens in the Republic of Kazakhstan. In the event of the
loss of a job due to labor market changes, the Law on Migration allows migrant
workers to remain in the country for the duration of their valid residency
registration. Law on Migration of the Republic of Kazakhstan, art. 5.

[41] Code of
Administrative Offences of the Republic of Kazakhstan, art. 394.

171, entered into force March 23, 1976. (ICCPR), ratified by
Kazakhstan on January 24, 2006; Optional Protocol to the International
Covenant on Civil and Political Rights, adopted December 16,1966, entered into
force March 23, 1976, ratified June 30, 2009; Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention
against Torture), adopted December 10, 1984, entered into force June 26, 1987,
ratified by Kazakhstan on August 26, 1998; Optional Protocol to the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
adopted December 18, 2002, entered into force June 22, 2006, ratified by
Kazakhstan on October 22, 2008; International Covenant on Economic, Social and
Cultural Rights (ICESCR), adopted December 16, 1966, entered into force January
3, 1976, ratified by Kazakhstan on January 24, 2006; International Convention
on the Elimination of All Forms of Racial Discrimination (ICERD), adopted
March 7,1966, entered into force January 4, 1969, ratified by Kazakhstan
on August 26, 1998.

[57] Human
Rights Committee, General Comment 31, Nature of the General Legal Obligation on
States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Ass.13 (2004), para.
8.

[58] The
eight core conventions are: ILO Convention No. 29 concerning Forced or
Compulsory Labour, adopted June 28, 1930, entered into force, May 1, 1932; ILO
Convention No. 105 concerning Abolition of Forced Labor, adopted June 25, 1957,
entered into force, January 17, 1959; ILO Convention No. 87 concerning Freedom
of Association and Protection of the Right to Organise, adopted July 9, 1948,
entered into force July 4, 1950; ILO Convention No. 98 concerning the
Application of the Principles of the Right to Organise and to Bargain
Collectively, adopted July 1, 1949, entered into force July 18, 1951; ILO
Convention No. 111 concerning Discrimination in Respect of Employment and
Occupation, adopted June 25, 1958, entered into force June 15, 1960; ILO Convention
No. 100 concerning Equal Remuneration for Men and Women Workers for Work of
Equal Value, adopted June 29, 1951, entered into force May 23, 1953; ILO
Convention No. 138 concerning Minimum Age for Admission to Employment, adopted
June 26, 1973, entered into force, June 19, 1976; and ILO Convention No. 182
concerning the Prohibition and Immediate Action for the Elimination of the
Worst Forms of Child Labour, adopted June 17, 1999, entered into force November
19, 2000. See also ILO, List of Ratifications of International Labour
Conventions, Kazakhstan, http://www.ilo.org/ilolex/english/newratframeE.htm
(accessed January 19, 2010).

[60] Ibid.
The Universal Declaration of Human Rights (UDHR) also provides that everyone
has the right to rest and leisure, including limitation of working and periodic
holidays with pay, as well as the right to just and favorable remuneration, and
the freedom to form and join trade unions. UDHR, arts. 23 and 24.

[62]See Human Rights Watch and the Center for Human Rights and Global
Justice, On the Margins of Profit: Rights at Risk in the Global Economy, February
2008.

[63]In addition to the UDHR, the preambles of both the ICCPR and ICESCR
recognize that in addition to states, “individuals” have human
rights responsibilities, a term that can incorporate juridical persons
(including businesses) as well as natural persons. Moreover, there is a broad
consensus that businesses are subject to direct responsibility for human rights
abuses that amount to international crimes, including enslavement, genocide, war
crimes, and crimes against humanity.

[64]There is as yet no shared understanding of the full scope of
businesses' human rights responsibilities (including under the special
circumstances in which a company fulfils a public function and/or provides an
essential service), whether these are or should be binding under international
law, and if so how they can best be enforced. In the past, such issues have
proven highly contentious.

[65] See United
Nations Human Rights Council, Resolution 8/7, “Mandate of the Special
Representative of the Secretary-General on the issue of human rights and
transnational corporations and other business enterprises,” June 18,
2008.

[67]See UN Global Compact Office, "Overview of the UN Global
Compact," updated November 6, 2008,
http://www.unglobalcompact.org/AboutTheGC/index.html (accessed February 9,
2009). In addition, a participating company is "expected to publicly
advocate the Global Compact and its principles via communications vehicles such
as press releases, speeches, etc." and is "required to communicate
with their stakeholders on an annual basis about progress," specifically
regarding implementation of the ten principles and partnership projects that
support broad UN goals. UN Global Compact Office, "Frequently Asked
Questions," updated November 7, 2008, http://www.unglobalcompact.org/AboutTheGC/faq.html
(accessed February 9, 2009).

[71]Ibid., I.3. OECD's Investment Committee has stated that the Guidelines
apply to international investment or other activities that have an
"investment nexus," which it has not defined but that, experience
shows, can encompass supply and contractor relationships. For further discussion,
see OECD Watch, "The Model National Contact Point (MNCP): Proposals for
improving and harmonizing the procedures of the National Contact Points for the
OECD Guidelines for Multinational Enterprises," September 2007, p. 18.

[74]Labor
relations arise between the employee and the employer on the basis of the
employment contract concluded in accordance with this Code. Labor Code of the
Republic of Kazakhstan, art. 20.

[75]
Agreement between the government of the Republic of Kazakhstan and the
Government of Kyrgyzstan concerning labor activity and social protection of
migrant workers, employed in agricultural work in border regions, arts. 5 and 6
and agreement between the government of the Republic of Kazakhstan and the
Government of Kyrgyzstan concerning labor activity and rights protection of
migrant workers, of July 4, 2006, art. 6

[90] Labor
Code of the Republic of Kazakhstan, arts. 121, 122, and 134.

[91] Letter
from Hurwitz, January 14, 2010. In Kazakhstan and other countries where Philip
Morris International purchases tobacco, Philip Morris International leaf
experts judge the quality of the leaves to be purchased and assign the leaves a
grade. In 2008, tobacco in Kazakhstan was categorized into six grades, with
prices in 2008 ranging from 70 tenge (US$0.57) per kilogram for the lowest
grade, to 275 tenge (US$2.22) per kilogram for the highest grade. Exchange
rates for December 1, 2008. Letter from Hurwitz, November 10, 2009.

[94] Human
Rights Watch interviews with Alym A. and with Nurdin N., Karatash, December 12,
2009, and with Zhumartbek Zh., with Umut U., and with Sharapat Sh., Karatash, Kyrgyzstan,
December 13, 2009. Unless otherwise noted, Kazakh tenge-US Dollar exchange rates
as of December 1, 2009, as on Oanda.com.

[95] Law of
the Republic of Kazakhstan, no. 96-4, December 4, 2008, On the Republican
Budget for 2009-2011,” art. 8, and Law of the Republic of Kazakhstan, no. 219-4, December 7, 2009, On the Republican Budget for 2010-2011,” art. 9.

[102] Human
Rights Watch interviews with Alym A. and with Nyrdyn N., Karatash, December 12,
2009, and with Zhumartbek Zh., with Umut U., and with Sharapat Sh., Karatash,
December 13, 2009.

[103] Article
137 of the Labor Code of the Republic of Kazakhstan states: 1) Withholdings
from the wages of an employee shall be made by court ruling, as well as in
cases envisaged by the laws of the Republic of Kazakhstan. 2) Withholdings from
the wages of an employee for the purpose of redeeming his debt towards the
organization for which he works may also be made on the basis of an act of the
employer, with the written consent of the employee. 3) The total amount of
monthly withholdings shall not exceed fifty per cent of the wage due the
employee.

[106] For
example, Sabir S., who worked in Malybai in 2009 with his wife and two
children, ages 15 and 13, said that his employer provides him and his family
food, and that both he and the landowner each keep a notebook recording the
expenses. Human Rights Watch interview with Sabir S., Malybai, June 11, 2009.
Also Human Rights Watch interview with Ruslan R., Malybai, September 25, 2009.

[107]
To illustrate this problem, four of these cases are described in this section.
See also the cases of Almira A. and her family and of Umut U. and her family,
described in detail below in Forced Labor.

[181] Philip
Morris Kazakhstan, “Instructions for Safe Handling of Pesticides and
Mineral Fertilizers,” undated, in Russian. According to a photograph
provided by PMK to Human Rights Watch, these materials are also displayed in
poster form at the Philip Morris Kazakhstan tobacco factory, where landowners
and some migrant workers visit when delivering tobacco at the end of the
season.

[203] There
is extensive public health and occupational health literature on GTS. See for
example, Robert H. McKnight and Henry A. Spiller, “Green Tobacco Sickness
in Children and Adolescents,” Public
Health Report, no. 120(6), Nov-Dec. 2005, pp. 602–606,
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1497768/?tool=pubmed (accessed
January 26, 2010).

[248] IUF is
a global trade union federation with a membership of 363 affiliated
organizations representing 12 million workers in 128 countries. Members are
employed in agriculture, the preparation and manufacture of food and beverages,
hotels, restaurants and catering services, and all stages of tobacco
processing. The IUF, http://cms.iuf.org/?q=node/149 (accessed February 11,
2010).

[299] See
International Labour Organization International Programme on the Elimination of
Child Labor (ILO-IPEC) and the Center for Study of Public Opinion (CSPO),
“Child Labor in Tobacco and Cotton Growing in Kazakhstan,” Almaty,
2006; and Concluding Observations of the Committee on the Rights of the Child:
Kazakhstan, CRC/C/KAZ/CO/3, 19 June 2007, paras. 63-66; and ILO-IPEC, CAR Capacity Building Project, Project Document.

[304] For a
detailed list of the hazards posed to children in tobacco farming see ILO,
““Training Resource Pack on the Elimination of Hazardous Child
Labor in Agriculture, September 2005,
http://www.ilo.org/global/What_we_do/Publications/ILOBookstore/Orderonline/Books/lang--en/docName--WCMS_091344/index.htm
(accessed February 11, 2010).

[306]The Convention on the Rights of the Child guarantees
all children under eighteen the right “to be protected from economic
exploitation and from performing any work that is likely to be . . . harmful to
the child’s health or physical, mental, spiritual, moral or social
development. Convention on the Rights of the Child (CRC), adopted November 20,
1989, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc.
A/44/49 (1989), entered into force September 2, 1990, ratified by Kazakhstan on
August 12, 1994 art. 32. ILO Convention No. 182 concerning the Prohibition and
Immediate Action for the Elimination of the Worst Forms of Child Labor (Worst
Forms of Child Labor Convention), adopted June 17, 1999, 38 I.L.M. 1207,
entered into force November 19, 2000, ratified by Kazakhstan on February 26,
2003, art. 3; ILO Convention No. 138 concerning the Minimum Age for Admission
and Employment (Minimum Age Convention), adopted June 26, 1973, 1015 U.N.T.S.
297, entered into force June 19, 1976, ratified by Kazakhstan on May 18,
2001, art. 2.

[308] Worst
Forms of Child Labour Convention, art. 3(d). ILO Recommendation 190, which
accompanies Convention 182, suggests that states parties identify the
following as hazardous labor to be prohibited: labor that exposes children to
physical, psychological or sexual abuse; work underground, under water, at
dangerous heights or in confined spaces; work with dangerous machinery,
equipment and tools, or which involves the manual handling or transport of
heavy loads; work in an unhealthy environment which may expose children to hazardous
substances, agents or processes, or to temperatures, noise levels, or
vibrations damaging to their health; and work under particularly difficult
conditions such as work for long hours or during the night or work where the
child is unreasonably confined to the premises of the employers. ILO, R 190,
Worst Forms of Child Labor Recommendation, 1999, para. 3,
http://www.ilo.org/ilolex/english/recdisp2.htm (Accessed December 7, 2009).

[311]
Tripartite meetings bring together a cross-section of government, employer and
worker representatives from countries that are prominent or have a strong
interest in a given sector. ILO Tripartite Meeting on the Future of Employment
in the Tobacco Sector, “Resolution Concerning Child Labour in the Tobacco
Sector,” February 24-28, 2003, http://www2.ilo.org/public/english/dialogue/sector/techmeet/tmets03/tmets-res-10.pdf
(accessed February 11, 2010).

[312] Order
of the Ministry of Labor and Social Protection of the Republic of Kazakhstan,
No. 185-P, July 31, 2007, On Confirming the List of Professions in Which It Is
Prohibited to Hire Workers Under the Age of Eighteen Years Old, and
Establishing the Norms For Hauling and Moving of Heavy Loads for Workers Under
the Age of Eighteen.

[314]Individual labor contracts may be concluded with
persons 16 years and older. Employment of children aged 15 who have received
secondary education is permitted only with the written consent of their parents
or of a guardian. Individual labor contracts may, with the consent of a parent
or guardian, be concluded with children 14 years old and older for work during
their spare time from studying, and only in work that is not harmful to health
and does not disrupt their studies. Labor Code of the Republic of Kazakhstan,
art. 30.

[315] The
Labor Code establishes shorter working hours for employees aged 14-16 years
(not more than 24 hours per week) and 16-18 (not more than 36 hours per week),
Labor Code of the Republic of Kazakhstan, arts. 181 and 183.

[322] By
contrast, a person working a 40-hour work week for nine months, or 36 weeks,
would get at a minimum of 72 weekend days (or approximately 10 weeks) off.
Human Rights Watch interview with Sabir S., Malybai, June 11, 2009.

[326] The
International Covenant on Economic, Social and Cultural Rights provides that
primary education "shall be available to all" and that secondary
education "shall be made generally available and accessible to all by
every appropriate means. International Covenant on Economic, Social and
Cultural Rights (ICESCR), adopted December

993 U.N.T.S. 3, entered into force January 3, 1976,
ratified by Kazakhstan January 24, 2006, art. 13. Article 28 of the Convention
on the Rights of the Child recognizes "the right of the child to
education."

[330]Although Kazakhstan has not ratified the International
Convention for the Protection of All Migrant Workers and Members of their
Families, the treaty nevertheless provides useful guidance on states’
responsibilities vis-à-vis migrant workers. Article 30 of the Convention
states: “Each child of a migrant worker shall have the basic right
of access to education on the basis of equality of treatment with nationals of
the State concerned. Access to public pre-school educational institutions or
schools shall not be refused or limited by reason of the irregular situation
with respect to stay or employment of either parent or by reason of the irregularity
of the child's stay in the State of employment." International Convention
on the Protection of the Rights of All Migrant Workers and Members of Their
Families (Migrant Workers Convention), adopted December 18, 1990, G.A. Res.
45/158, annex, 45 U.N. GAOR Supp. (No. 49A) at 262, U.N. Doc. A/45/49 (1990),
entered into force July 1, 2003.

[331] Law on
Education of the Republic of Kazakhstan, article 31. Law on the Rights of the
Child of the Republic of Kazakhstan, no. 345, August 8, 2002. Article 2 states:
“This Law applies to the citizens of the Republic of Kazakhstan, foreigners and stateless persons.” Article 15 states: “Every child has
the right to education. The State provides free secondary education and
vocational primary education; and on a competitive basis – free
vocational secondary and higher education.”

[338] Human
Rights Watch saw this family working together with eight other families on a
large farm in Malybai in October 2009 and interviewed them after their return
to Kyrgyzstan in December 2009. Human Rights Watch interview with Zhumartbek
Zh., Karatash, Kyrgyzstan, December 13, 2009.

[359]Written
Replies by the Government of Kazakhstan Concerning the List of Issues (CRC/C/KAZ/Q/3)
Received by the Committee on the Rights of the Child Relating to the
Consideration of the Second and Third Combined Periodic Report of Kazakhstan, April 17, 2007.

[363]
ILO-IPEC, Ministry of Labor and Social Protection of Kazakhstan, General
Prosecutor’s Office of Kazakhstan, et al., “Joint Plan of Work for
Combating the Worst Forms of Child Labor and Realizing ILO Convention 182 in
Kazakhstan for 2009-2011,” on file with Human Rights Watch.